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COL.  GEORGE  WASHINGTON  FLOWERS 
MEMORIAL  COLLECTION 


TRINITY  COLLEGE  LIBRARY 
DURHAM,  N  C 


THE 


JUDGE   ADVOCATE'S 


VADE     MECUM: 


EMBRACING    A    GENERAL    VIEW    OF 


MILITARY    LAW, 


PRACTICE  BEFORE  COURTS  MARTIAL, 

WITH     AS    EPITOME    OF    THE 

L  A  W     O  F      E  V  I  1)  E  N  C  E  , 

AS      APPLICABLE     TO      MILITARY      TRIALS. 
BT 

C .     H .     LEE. 


R I  r  n  M  o  N  I) : 

WEST   AND   JOHNSTON, 
No.    145    M  Aiv    StmBBT. 

1863. 


Entered  according  to  Act  of  CongreM,  in  the  year  1862,  by 

WEST    &    JOHNSTON. 

Ib  tlie  Clerk's  Office  of  the  District  Coiirf  of  the  Confi'derate  Slntos.  for  the  Enstcni  District  of 

VirgiiiiH. 

Printbo  bt  Evans  t  Cooswelu  No.  3  Broad  Street^  Charleston,  S.  C. 


fltJ^ 


^  /c*8 


<r- 


/^-x 


PREFACE, 


A  practical  Treatise  on  Courts  Martial  and  the  duties  of 
Judge  Advocate,  seems  to  be  called  for  at  the  present  time. 
The  works  on  these  subjects  by  European  writers  can  only  be 
of  partial  application  in  this  country;  and  besides  being  volu- 
minous and  expensive,  are  diflRcult  to  be  obtained.  The  only 
book  relating  to  them  issued  in  America  which  is  of  much 
value  is  that  published  by  Captain  De  Hart,  in  1846.  This 
appears  to  have  obtained  the  approval  of  the  military  profes- 
sion, and  to  be  generally  received  as  a  standard  authority. 

The  existing  demand  would,  therefore,  probably  have  been 
met  to  a  great  extent  by  a  new  edition  of  DeHart,  could  it 
have  been  fairly  obtained;  but,  on  further  examination,  it  was 
believed  that  his  work  was  susceptible  of  improvement,  not 
only  in  its  general  plan  and  arrangement,  but  by  the  addi- 
tion of  the  views  of  other  authors  upon  most  of  the  topics 
discussed  by  him,  and  particularly  in  respect  to  the  office  of 
Judge  Advocate. 

Instead,  therefore,  of  issuing,  as  was  suggested  by  some,  a 
new  edition  of  the  Treatise  of  Do  Ilart,  it  has  been  thought 
hotter  to  attempt  a  partial  reproduction  of  his  work,  retain- 
ing only  what  appears  of  especial  value,  and  incorporating 
with  it  such  improvements  as  may  be  justified  by  the  authori- 
ties to  be  collated  and  examined.  In  this  way  it  is  believed 
that  nothing  which  is  valuable  in  De  Hart  will  be  lost,  while 
much  that  is  important  may  be  secured  from  other  sources. 


ib54i3 


4  PREFACE. 

A  laborious  examination  of  the  subjects  discussed,  and  some 
experience  in  connection  with  them,  will,  it  is  hoped,  justify 
the  writer  in  the  task  he  has  assumed  :  at  the  same  time,  con- 
scious of  the  many  imperfections  which  will  be  found  in  its 
execution,  he  would  here  i)lcad  the  difficulties  which  attend  it, 
and  invoke  the  indulgent  forbearance  of  the  critical  reader. 

It  is  proposed  to  consider  the  various  subjects  to  be  dis- 
cussed in  the  order  presented  in  the  following  table  of  con- 
tents. 

Bedford  county,  Va.,  May,  1862. 


CONTENTS. 


I — Observations  on  Military  Law  in  general. 
II — The  Origin  of  Military  Courts;  the  soiirrcs  of  their  jurisrliotion,  and 

the  time  within  which  such  jurisdiction  should  be  exercised. 
in — The  Judge  Advocate;  his  qualifications;  responsibilities;  rights  and 

duties. 
IV — Courts  of  Inquiry  ;  their  objects,  organization,  and  special  duties. 
V — Courts  Martial ;  and  herein, 

1.  Of  their  constitution  and  organization,  as  divided  into  Gen- 

eral, Regimental,  and  Garrison  Courts. 

2.  Their  particular  jurisdiction. 

3.  Their  duties,  general  powers,  and  the  punishments  tliey  may 

respectively  impose. 
VI — Military  Trials  ;  and  herein, 

1.  Of  the  charges  and  other  preliminaries  to  the  trial. 

2.  The  proceedings  in  the  trial,  and  the  incidents  thereof. 

3.  The  findings  of  the  Court. 

4.  The  sentence  of  the  Court. 

VII — Of  the  Final  Proceedings  ;  and  herein, 

1.  The  revision,  and  confirmation  or  disapproval  of  the  proceed- 

ings and  sentence. 

2.  The  execution  of  the  sentence. 
VIII — Re«lress  of  Wrongs ;  and  herein, 

1 .  Of  the  new  trial. 

2.  Of  the  particular  modes  of  redress  provided  in  the  Articles  of 

war. 
IX — Lastly,  the  Law  of  Evidence,  as  applicable  in  military  trials. 


195413 


INDEX 


N.  B.  The  figures  in  this  Index  refer  to  the  Sectioni  in  the  margin  of  the  bwjk. 


A. 

Abscnrc  without  leave 344 

Adams,  John '" 

Accomplice '•' 

weight  of  his  evidence '" 

when  to  be  released 318 

Adjournment  of  court — how  ordered 1^1.  142,  149 

for  wliat  time 142 

Alibi '<7 

Appeals 98,286,287,289 

Approval  of  proceedings 262 

Arrest — of  officers  and  soldiers 1^2,  184 

breach  of 184,  185 

who  to  be 186 

Articles  of  War — origin  of 12,  17 

who  bound  by 17,  18 

violations  of '37 

remarks  on  .34th  and  35th  articles 282-285 

remarks  on  83d  article "48 

Arraignment  of  accused ^'^i  "9 

Army,  a  legal  body 17 

followers  of   2 1 .  26 

1!. 

Blaokst'.nr.  Sir  Wm 1,  3,  5,  189 

Bcrri'n.  Mr 266 

Bail 317 

Breach  of  arrest 184,  185 

C. 

Camp  followers 21,  ZC 

Cadets,  liable  U>  military  law. 17 

Cashiering Ifil.  162.  253 

Capital  punishment — Fee  Detilk. 

Cat-"'-nJne-tails 270 

Certainty  in  charg*" '75 

a«  to  time  and  place 175 

prr(K>n  and  facts 175 

Cbiralry,  court  of '** 


«  INDEX. 

-Citizen,  right  of 12 

'Civil  action  against  court  martial 37,  134,  168 

Children,  when  may  testify 308 

Civil  court  no  jurisdiction  in  military  affairs 30,  31,  129 

Cowardice 161 

Contempts 114,  144,  145,  14(),  152 

Corporal  punishment 158,  ItiO,  270 

Conspiracy 341 

Constitution,  the 12,  14 

Civilians,  authority  of  military  court  over 114,  144 

Charges — duties  of  Judge  Advocate  as  to 42,  43 

to  be  read  in  court 68 

not  read  to  witness 226 

defective^  not  to  proceed  on 68 

how  altered 68,  173 

on  reading,  court  cleared 147 

court  to  decide  as  to 147,  172 

not  to  accumulate 173,  291 

definition  of 170 

rules  in  framing 175 

writings  referred  to  in 176 

intention  to  be  stated  in  175 

technical  terms  in 177 

to  use  no  figures  in 177 

words  of  law  in  178 

offences  to  the  prejudice  of  good  order,  etc.,  in  charge 1 79 

duplicity  in 180 

special  matters  in 181 

certainty  in 175 

the  whole  to  be  exhausted 240 

Challenge — Judge  Advocate  not  to  be 54,  193 

opportunity  to 62,  67 

ground  of  to  be  stated 67 

court  to  decide 154,  194 

peremptory,  not  allowed 193 

rules  as  to   193,  194,  195,  201,  202 

grounds  of 195,  196,  197 

time  for 199 

to  be  favorably  viewed  200 

principal 195 

to  the  favor 195 

to  the  array 203 

Character 311,  339,  340,  348 

Circumstantial  Evidence — grounds  of 333 

importance  of 334,  336 

cautions  as  to 335 

rules  concerning 337 

extenuating  matters 338 

Confinement — no  place  prescribed 1 84 

Compulsion,  legal 237 

Conduct  unbecoming  an  officer  and  gentleman 348 


INDEX.  9 

Counsel — Judge  Advocate  not  to  have,  except 40 

allowed  when 70,  110 

cannot  address  court 70 

Counsel  and  Client 320 

Court  of  Inquiry  (see  Title :   Inquiry) lOft 

Court  Martial — grounds  of  jurisdiction 10,  15,  I  fi,  17,  20,  32 

importance  of 15 

legal  liability  of 37 

to  aid  civil  courts 20 

power  to  appoint  Judge  Advocate  for 49 

names  of  members  registered  by  seniority 63,  120 

authority  of 65,  142 

president  of,  powers 64,  65 

how  and  when  cleared 143,  147,  65 

majority  of  votes  in,  when  decisive 65,  142 

closing  and  opening  of  court  recorded  66 

to  decide  propriety  of  questions  to  witness 77 

opinions  how  delivered 89 

question  by  court  not  to  be  objected  to 77 

punishments  voted 90 

members  vote  on  all  <|uestioDs 91 

judgment  how  entered  ...    92 

recommendation  to  mercy   93 

proceedings  to  be  signed 94 

"  when  remanded 95 

"  to  be  sent  to  War  Department 96 

"  to  commanding  officer 96 

final  proceedings  of 257 

time  (if  sitting 113 

"      meeting 120,  141,  189 

power  to  change  time  and  place  of  meeting 141 

power  to  appoint  court .119,  121,  122 

composition  of 1 20,  1 23 

arrangement  of  members 120 

supernumeraries 122 

what  officers  not  to  be  members  of 123 

number  and  rank  of  officers  in.  how  decided 125,  126 

extent  of  jurisdiction - 129-133 

civil  responsibility  of  members , 37,  134 

powers  confined  to  milit.ary  persons 140 

general  powers  and  duties 140,  141 

adjournment  of  court  .    141.  142 

proceedings  not  made  known  during  the  trial 146 

DO  control  of  prisoner  out  of  court 148 

to  ex  ami  ci«  all  charges 151,  240 

opinion  of  court  may  be  given  either  parly 152 

mode  of  tAking  opinion! 241 

powers  before  oath  taken 153 

to  judge  law  and  facts,  etc 222,  29.3 

punishments  tbcy  may   order  (see  Titles:    I'uinthmmi — Find- 
iny — Sentence — Reriiion) 154 


10  INDEX. 

when  commantling  ofiRcer  to  prosecute 119 

continues  till  dissolved 141,  149 

when  reduced  in  number 149 

when  best  to  dissolve 149 

general  rules  of 191 

rule  in  stating  decision 243 

mnjority  bound  by 250 

Crimen  falsi 311 

Custom  of  war 19 

D. 

Death,  punishment  of 156,  157,  158,  107,  271 

Two-thirds  vote  necessary  for 158,  242 

General  Court  Martial  only  can  order 158 

Degradation 272 

Dismission — See  Cashiering. 

Depositions 45.  2.32 

Deaf  and  dumb  persons 308 

Desertion 1 57,  252,  .344 

punished  how 157 

does  not  incapacitate  witness 312 

Declarations 356 

Documentary  evidence  (see  Ecidcnve) 78 

Drunkenness,  bow  far  excuse  for  crime  (see  Wituesn) 238 

Duplicity  in  charge 180 

E. 

Embezzlement - 163 

Evidence,  written,  to  be  authenticated 72 

docuracntar}'' 78 

rules  respecting 78 

copies  when  admitted 78 

whole  document  to  be  read 78 

to  be  recorded 79 

confidential  communications 80 

of  witness  read  in  court 81 

duty  of  Judge  Advocate  as  to. . .  .i 85 

proceedings  of  court  of  inquiry,  when 105 

defined 294 

degrees  of 295 

differs  from  proof 296 

parol  and  written 297 

general  rule  as  to  what  admissible 298 

direct,  what  is 299,  300 

hearsay,  not 300 

exceptions  as  to  hearsay .301 

dying  declarations 301,  302 

of  deceased  witnesses    303 

declarations  of  rioters 304 

must  be  confined  to  issue 337 

of  conspiracy 341 

of  mutiny 341 

in  e.xcuse  and  extenuation 338 


INDEX. 


11 


.339 


as  to  character 

substance  of  issue  to  be  proved 344 

allegations  to  be  proved 344 

344 

names 

time  and  place 345,  346,  .347 

alibi 347 

affirmative  of  issue  to  be  proved 349 

negative  not  generally  proved 349 

best  evidence  produced 350 

primary  and  secondary '^2 

secondary  not  received  except 353 

exceptions  to  rule  requiring  best  evidence 354 

Evidence— See  Titles:    Witnesv—Himiaud  and    Wife— Counsel  and  Client — l)c- 
2>osilii)n8 — Circnnifitantial  Evidence. 

Execution  of  sentence  (see  Sentence) 270 

F. 

Final  proceedings 257 

Fine 16* 

Figures,  charge  not  to  be  in ''° 

Flogging 158,165,270 

Followers  of  the  army ^^ 

Fraud  (see  Embezzlement) '"' 

Findings  of  Court — wbtde  charge  to  be  exhausted  in 240 

mode  of  giving  opinion  of  court  on 241 

votes  to  decide 242 

rule  in  stating  decision 243 

special  finding  or  verdict 245,  216 

degree  of  guilt  to  be  found  by  court 247 

court  may  sentence  prosecutor 248 

may  find  less  guilt  than  charged. ...    249 

may  consider  extenuating  circumstances 249 

minority  bound  by  majority  (see  Sentence) 250 

G. 

Oarrison  Courts — See  Regimental  Courtn. 

II. 

Habeas  Corpus  Act— care  of  England  for ^- f> 

privilege  secured  in  constitution 7,  8 

not  to  be  suspended  but  by  congress 7,  8.  9 

opinions  of  Mr.  Jefferson  and  others 9 

Husband  and  wife ' 

who  included  a.s -" 

„        .  252.  271 

Hanging ' 

Handwriting 

I. 

Inquiry,  Court  of— duly  of  Judge  Advocate  in l"" 

proceedings  in 100,101,104,112,118 

witnesses  before '  "2 

authorized  by  law '^''* 

composition  of 1"4,  106 


12  INDEX. 

when  proceedings,  evidence 105 

oaths  of 105 

the  president  only  to  order 105 

special  objects  of 107,  111 

how  far  a  judicial  body 108 

general  objects  of 103 

accused  to  be  present  in 109 

counsel  allowed  in 110 

sits  with  closed  doors Ill 

expresses  opinion  when Ill 

challenge  in,  for  cause 112 

time  of  sitting 113 

copies  of  record  of 113 

when  accused  in  arrest  before 114 

contempts  before 114 

opinions    not  divulged 115 

revision  of  proceedings 116 

statute  of  limitations  in 117 

how  dissolved 118 

members  not  to  sit  on  court  martial,  when 108 

accused  not  to  criminate  himself •, 109 

governed  by  order  convening  it Ill 

Idiots  and  Lunatics,  etc 235,  308 

Interpreter,  when  allowed 106 

Imprisonment 164,  165,  254,  273 

Inferior  officers — remedy  for  wrongs  of 187 

Incompetency  of  Witness — See  Wit7ieea. 

Interest — See  Witness. 

Intoxication  of  Witness — See  Wiiitess. 

Issue — evidence  to  be  confined  to 337 

affirmative  to  be  proved 349 

J. 

Jefferson,  Thomas — ojnnion  as  to  habeas  corpus 9 

Jeopardy,  twice  in 15,  217 

Jurisdiction  of  Military  Courts — sources  and  grounds  of  ....10,  15,  10,  17,  20,  345 

extent  of 129,  140 

how  limited 129,  140,  239 

how  determined 130,  131,  132 

where  law  is  doubtful  as  to 133 

where  martial  law  exists 136 

Judicial  Military  Tribunals,  who  may  appoint 122 

Judgment  of  Court — how  entered 92 

arrest  of 2.34 

pleas  in  arrest  of  rarely  employed 239 

Judge  Advocate — has  no  judicial  power 58 

may  remonstrate,  when 68,  69,  60 

may  record  his  opinion 68,  59,  60,  85 

not  to  give  opinion  on  sentence 60 

his  duty  on  meeting  of  court 61,  62 

as  to  challenge 62 


INDEX.  13 

reads  charges  to  court 68 

not  to  proceed  on  defective  charjje 68 

'  ni:iy  change  form  of  charge 68 

opens  the  case 71 

mode  of  address 71 

swears   witnesses 72,73 

daily  duties  in   court 82 

reply  to  defence SI,  232 

sums  up  the  case S7,  88 

cannot  protest 58,  88 

takes  opinions  of  court S9,  90,  241 

to  enter  judgment  himself 92 

form  of  entry  of  judgment 92 

duty  on   appeals 98 

to  sign  proceedings 94 

qualiticatiuns  of 33,  34,  35 

responsibilities  of 36,  37,  38,  40 

whether  legally  liable 37,  38.  39 

not  so  regarded 39 

his  general  duties 41,  42,  43,  50,  51 

^  authority  to  appoint 49 

may  assist  prisoner 51,  62,  57,  58 

not  subject. to  challenge 54 

duty  as  to  charges 42.  43 

as  to  summoning  witnesses 44,  46 

prepares  a  brief 47 

provides  place  of  meeting 47 

duties  in  court,  etc 48,  50,  55 

threefold  character 50,  51 

either  party  a  right  to  his  opinion 53,  58 

to  conduct  prosecution 55 

indei)endcnt  of  court  as  prosecutor 55 

duties  as  prosecutor 50,  51,  55 

should  be  impartial 56 

legal  adviser 58 

power  of  court  over 99 

duty  in  court  of  inquiry 100 

L. 
Law — municipal 1 

military 2,  4 

martial 3.  4,  1 36 

Labor,  hard 1 3S,  1 65 

Language,  construction  of 1 77 

Limitations,  .Statute  of 28 

Liberty,  personal,  constitutional  guards  of 7,  15 

M. 
Martial  Law 3.  4,  136 

Effects  of 5 

Marine  Corps ,' 1 27 

Majority — Sec  Votet. 

Marking  with  letter  D 252 


14  INDEX. 

Messengers  and  Orderlies 191 

Military  Law 2,  4,  170 

Courts 10,  15,  16,  17.  20,  122 

Messengers  allowed 191 

Misadventure 326 

Militia,  ('(institutional  provision  as  to 15 

officers  on  courts  martial 127 

Military  offences 22 

Mutiny,  English  act  of 11 

Mutiny,  offence  of 177,  252,  341,  .342 

N. 

Navy  Courts 1 3,  73 

Ile;4ulati(ins 13 

Names 175,  344 

New  Trials 276 

not  after  acquitted 277 

when  granted   278,  279,  280 

application  for,  how  made 281 

proceedings  on  (see  Trial) 289 

0. 

Oath— to  court 61,  105,  204 

manner  of 62 

to  witnesses 73,  105 

must  be  before  a  full  court 73 

Offences,  military 22,  23 

Office,  incapacity  to  hold 162 

Officer,  punishments  of 166 

not  summoned,  except 102 

may  be  suspended,  etc 159 

reprimand  of 160 

cashiering  of 161,  162 

arrest  of 182 

reviewing 264,  267 

succeeding 268 

conduct  of 368 

Opinions  of  court   89,  152 

not  to  be  divulged 115 

Order,  to  be  read  to  court 61 

copy  provided 68 

observed  in  court 143,  144 

Orderly,  etc 191 

Oral  testimony — See  Ecidiiwe  and   'Witnexn. 

P. 

Pardon 218,  278,  313 

Parliament,  English 11 

Place  and  time 170,  219,  345 

Pleas,  to  be  recorded 69 

of  "not  guilty" 69,  213 

of  "  former  trial  " • 161,  216 

other  pleas 209 

to  jurisdiction 210 


INDEX. 


15 


91 1 
in  abatement *" 

of  "ffuiltv" 2^^ 

214. 
Kprcinl  phiiK 

of  statute  of  limitations 214 

former  acquittal ^'^ 

pardon 218 

want  of  particularity 219 

general  rules  as  to  special  pleas 220 

ooo 

proceedings  on  pleas ■'■'■' 

in  arrest  of  judgment ^'^^ 

presumptions  of  law •'"'' 

Prisoner,  all  mombcrs  must  be  present  at  trial  of 149,  1 50 

under  guard  without  charges 182 

provision  for  keeping '"2 

provision  for  release  of '''2 

brought  in  court '^2 

allowed  counsel '"'  207 

defence  of   231 

guilt  of — See  Finding. 

Punishments • 89,  90,  1 54-169 

how  voted  for 89,  91,  251 

what  forbidilen 1 54 

what  are  cruel l^** 

discretion  of  court  as  to l-''^ 

limitations  of 129,  165,  167 

checks  to,  etc l-''^ 

capital 1 55,  1 56,  167 

when  capital  punishment  may  be  inflicted 1 57 

of  oflioers 1"" 

of  soldiers - 1^' 

by  hard  labor 1^5 

of  spies 252 

corporal 252 

marking  with  letter 252 

of  deserters 252 

of  mutiny 252 

PrcBident,  the 264 

authority  of 266 

President  of  court  martial ''3,  120,  126 

to  adjourn  court ^^ 

general  powers 65,  142,  143 

to  sign  proceedings 94 

to  preserve  order 143 

no  casting  vote 244 

Prosecutor,  Judge  Advocate  acis  as 51,  55,  57 

when  commanding  officer  is 119 

Prisoner,  list  of  witnesses  given  and  received  by 44,  45,  188 

Judge  Advocate  to  aid 51,  52,  57,  188 

arraignment  of 63,  69,  208 

allowed  a  chair 64.  192 

to  state  ground  of  challenge 67 


16  INDEX. 

standing  mute TiO,  209 

treated  with  respect  71 

allowed  time  for  defence 83,  231 

several,  to  be  sejiaratel^'  tried 97 

court  no  control  of.  out  of  court 148 

Punishment,  by  incapacity  to  bold  office lf)2 

by  tino  and  imprisonment 164 

by  cashiering 161 

by  reprimand 1 60 

by  reduction  to  the  ranks 163,  1 67 

when  particular  directed  by  liiw 167 

general  rules  as  to 1 68 

observations  upon   169 

different  for  same  oflTence,  not  allowed  (see  Sentenr.e)  ,,    .,.167,  252 

R. 
Rank— in  courts  martial 120 

Reduction  to  ranks 163,  167 

Regulations  of  army 17,  18 

who  they  bind 17,  18 

Release    317 

Record,  revision  of 257 

to  be  written  with  care 62 

to  be  made  up  each  day 62 

must  be  read  to  court  dailj' 82 

not  read  to  witnesses 82 

to  be  sent  to  War  Department 96 

to  be  sent  to  commanding  officer 96 

cannot  be  contradicted 359 

Retainer  to  camp 25 

Reprimands    t 1 60 

Recommendations  to  mercy 93,  255 

Revision,  of  proceedings 257 

proceedings  may  be  returned  to  court,  on 258,259,261 

what  court  may  amend 260 

approval  after 262 

when  court  adheres  to  former  decision 263 

power  to  revise 264,  267 

duty  of  revising  officer 264,  266,  266,  278 

power  of  the  President  in  reviewing 264,  260 

proceedings  closed  after 267 

Regimental  courts 98 

proceedings  on  appeals  from 98,  2S6,  287,  289 

who  to  appoint 121 

jurisdiction  of 130,  131,  138,  139 

cannot  inflict  death 158 

what  crimes   they   punish 158 

proceedings  in •«  .288 

opinions  of  court  on  appeal  (see  Appenl) 290 

S. 

Safeguard,  forcing 158 

Sanity,  presumed 171 


INDEX.  17 

Sentence   of  court   (soe  Findintj) 251 

court  may  adjourn  before 251 

every  member  to  vote 251 

two  punishments  for  same  ofience  illegal 252 

words  of  law  to  be  followed  in 253 

term    of  imprisonment 254 

solitary  confinement 254 

recommendation  to  mercy 255 

court  may  change,  etc 256 

execution  of 270 

corporal   punishment 252,  270 

capital  punishment 271 

degradation    272 

imprisonment 272,  273 

to  be  strictly  enforced 275 

language  of 252 

marking  with  letter 262 

against  spies 252 

Spelling  of  name 344 

Special  verdict 245,  246 

Spies 252 

Stoppage  of  pay 163 

Suspension  of  officers,  etc 159 

Sutlers 24,  26 

Succeeding  officer 268 

Supernumeraries 193 

T. 

Technical  terms .'. .  .176 

Time  and  place 170,  346 

for  meeting  of  court 1 90 

Time  of  challenge 1 99 

granted  parties  to  trial 231 

Trials — general  rules  at 191 

mcition  to  postpone 205,  206 

should  be  separate 204 

former,  how  proved 216 

what  is  a  former  trial 217 

when  former  trial  a  bar 217 

new  (see  Aew   Trial) 276 

V. 

Verdict — special 245.  246 

Variance — need  not  be  pleaded 221 

Votei — majority  decide,  when 65,  77,  150,  242 

equality,  rule  where 344 

mode  of  taking S9,  91,  150 

in  capital  cbpcs 150,  241 

president  no  cacting 244 

minority  bound  by  majority 250 

every  member  to  vote 251 

court  vote  till  derinion  obtained 250.  251 

W. 

War  Dcpariinoiit,  prorecdingi"  of  court  to  be  sent  !•    9f, 

2 


18  INDEX. 

War,  custom  of 19 

Wirt,  Mr 266,  267 

Witnesses — no  one  to  be  against  himself 15 

names  of  witnesses  given 40 

retire  from   court,  when 69.  05 

to  be  sworn  before  full  court 73 

ei>m|)elcncy  of,  when  objcoteil  lo 74,  76 

how  exHUiined 70,  77,  81,  8.3,  227,  22S,  .306,  .324,  :{2.'),  326.  327 

examination  not  restricted  to  those  summoned 44 

leading  questions  improper,  etc 77,  325.  326 

questions  to  be  in  writing  and  all  entered 77,  227 

court  decides  on  question  objected  t 77 

tbeir  testimony  may  bo  read  to  them  when SI,  229 

may  correct  testimony S 1 .  229 

may  bo  recalled SO,  230 

bow  and  when  summoned 46,  102,  225 

no  form  of  summons 45 

depositions  of 45 

for  prisoner 11.  45.  1S8 

who  may  be  called  as 1  sy,  3(17 

sc]i»rate  examination  ii  test 224 

siek  witness 206,  225 

expenses  of 305 

lunatics,  when  may  be  308 

children,  when 308 

intoxication  of 308 

deaf  and  dumb 308 

want  of  religious  belief  in 307,  308,  309,  310 

infamy  of  character  in 311 

treason  in 311 

crimen  falsi 311 

conviction  of  crime 312 

desertion 312 

incompetency  of,    how  remuvcd 313 

interest  in 314 

accomplice,  when  may  ho  witness 315 

bail,  whei 317 

husband  and  wife,  when 319,  320 

counsel,  when 321 

credibility   of 322 

how   discredited 322,  324 

what  questions  they  may  decline  to  answer 329,  3.'!0 

Wrongs  — of  inferiors 1S7,  276 

redress  of  (see  Neic  Trial) 187,  276 

under  Articles  of  war 282 

of  officers 282,  284 

duty  of  commanding  general,  under  34th  Article  of  war 282,  283 

of  inferior  officers  and  soldiers 281,  285 

appeals  in  cases  of 1^6 

y>roceeding8  before  regimental  court  in  complaints  of 288,  2S9 

redress  only  at  request  of  party  wronged 291 


CnAPTER   I. 


MILITARY  AND  MARTIAL  LAW. 


Sir  William  Blackstone  has  defined  ^funicipal  Law  to  be 
"a  rule  of  civil  conduct  prescribed  by  the  supreme  ,^^  j^^^j. 
power  of  the  state,  commanding  what  is  right  and 
jtrohibiting  what  is  wrong."  But  Mr.  Chitty  objects  to  the 
latter  part  of  this  definition  as  superfluous  —  the  idea,  as  he 
contends,  being  completely  expressed  by  the  first  clause.  Ad- 
mitting the  correctness  of  this  criticism,  municipal  law  maj' 
be  more  accurately  defined  as  "a  rule  of  civil  conduct  pre- 
scribed by  the  supreme  power  of  the  state." 

Sec.  2.     The  law  thus  established  is  of  general  application. 
It  pervades  all  ranks  of  the  body  politic,  and  reaches 

'  "^    '  MiliUry 

every  interest  of  society.     As  none  arc  excluded  Irom        '"*• 
its  b».nefits,  so  all  are  subject  to  its  restraints.     But  military 
law,  though    not  less   powerful   where  it   applies,  is   far   less 
extensive  in  the  circle  of  its  operations.     It  is,  as  the  term 
imports,  designed  for  the  military  service,  "  or  state,  which 
includes  the  whole  soldiery;"  but  is  of  no  obligation  in  the 
affairs  of  civil  life  and  conduct.     Military  law  may, 
tlierctorc,  be  denned  as  a  "rule  oi      military  "con-    -.r  Miuury 
duct  prescribed  by  the  supreme"  authority;  and  must 
be  underst<»od  as  "  that  branch  of  the  laws  which  respects  mili- 
tary diiH'ipline  and  the  government  of  persons  employed  in  the 
military  service."     Though  not  exclusive  of  the  common  law, 


20  JUDGE  advocate's  vade  mecum. 

it  is,  within  its  appropriate  sphere,  independent  of  that  law — 
being  administered  under  other  forms  and  liy  dittVrent  ti-ilm- 
nals.  Neither  can  properly  infringe  the  jurisdiction  or  direct 
the  duties  of  the  other;  nevertheless,  it  is  made  the  duty  of 
those  who  administer  the  former  to  bo  "aiding  and  assisting" 
the  latter  in  arrest in<f  and  bringing  to  justice  offenders  against 
the  laws  of  the  land.* 

Sec.  3.     There  is  j'ct  a  sj)ecies  of  niilitar>-  law,  ot"  a  ditferent 

character  and  im])ort  from  what  should  properly  be  understood 

by  that  term,  but  which  is  not  unfrequently  confounded  with 

it — I  mean  what  is  now  commonK'  called  Martial  law. 

Mftrtial 

law.  gij.  Wii^.  lilackstone  himself  seems  occasionally  to  re- 

gard them  as  convertible  terms.  In  discussing  the  military 
establishment  of  England,  he  says:  "  They,  the  militia,  are  to 
be  exercised  at  stated  times.  Their  discipline  in  general  is 
liberal  and  easy;  but  when  drawn  out  into  actual  service,  they 
are  subject  to  the  rigors  of  martiul  law  ;"  and  again,  "  martial 
law,  which  is  built  on  no  settled  principles,  but  is  entirely  arbi- 
trary in  its  decisions  is,  as  Sir  Matthew  Hale  observes,  in  irutli 
and  reality  no  law,  but  something  imlulged  rather  than  allowed 
as  law.  The  necessity  of  order  and  discipline  in  an  army  is  the 
only  thing  that  can  give  it  countenance,  and,  therefore,  it  (?ught 
not  to  be  ])erinitted  in  time  of  peace. "f 

Sec.  4.  The  censure  of  the  militar}- jurisprudence  conveyed 
in  these  remarks  is  disclaimed  by  Mr.  Chitty,  as  unmerited  in 
his  time.  It  is  certainly  so  in  our  day  and  country;  for  ex- 
cepting the  very  liinitod  degree  of  discretion  allowed  in  minor 
concerns,  the  Articles  of  war  and  the  llegulations  for  the  direc- 
tion of  the  army,  in  conjunction  with  the  custom  or  common 
law  of  the  service,  clearly  define  the  duties  and  limit  the 
authority  of  all  connected  with  it;  so  that  very  little  indeed  is 
Jeft  to  arbitrary  discretion.     The  observations  of  Blackstone, 

•See  33(1  Article  of  War.  t^l.  Coin.,  I,  413. 


MIMTARY    AND    MARTIAL    LAW.  21 

however,  h:ive  been  citefl  onl}'^  to  show  that  the  proper  distinc- 
tion between  the  terms  referred  to  has  not  alwaj's  been  duly 
observed.  Yet  they  are  clearl}-  terms  of  ditfereiit  import  when 
aceuratel}'^  considered,  mllitar}^  law  being,  as  has  been  already 
observed,  a  rule  for  the  government  of  military  per-  ^^rtiai  law 
sons  onl}';  while  by  martial  law  is  understood  that 
condition  of  things  which  results  in  the  application  of  military 
rule  to  all  persons  indiscriminately.*  The  effect  of  martial 
law  is  not  to  apply  to  ever}'  one  all  the  rules  and  minutife 
of  the  military  code,  but  rather  to  bring  them  under  the  con- 
trol of  the  military  commander  for  the  time  being,  whose 
action  is  regulated  and  restrained  by  the  general  principles 
of  that  code,  and  the  necessities  of  the  occasion  —  necessities, 
however,  which,  in  former  days,  have  subjected  the  citizen 
to  imprisonment,  to  militarj'  trials,  and  summary  executions. 
Such,  in  a  few  words,  is  mariial  law,  as  distinguished  from 
military  law. 

Sec.  5.  Whether  a  system  conferring  power  of  such  magni- 
tude and  importance  may  be  lawfully  introduced  in  these 
states  by  the  decree  of  a  military  commander,  or  indeed  by 
any  authority,  except  that  of  the  Congress,  may  well  be  ques- 
tioned.    Its  effect,  as  has  been  already  intimated,  is 

Effpct"  of 

to  suspend  for  the  time  being  all  civil  proceedings,  """^''a'  •«"• 
and  subject  the  Jibertj*  and  even  life  of  the  citizen  to  a  power 
which  is  independent  of  the  forms  and  guarantees  that  dis- 
tinguish a  free  government.  Kecent  events  have  fully  ad- 
monished us  how  difficult  it  is  to  resist  temptations  to  the 
exercise  of  power,  and  how  important  to  adhere  to  the  safe- 
guards of  a  written  constitution.  "Of  great  importance  to 
the  ptiblic,"  says  Blackstone.  "is  tho  preservation  of  this  per- 
sonal liberty,  for  if  once  it  were  left  in  the  power  of  any,  the 
highest  magistrate  to  imprison,  arbitrarily,  whomsoever  be  or 


•  I»e  Hurt,  2  Kent.  M2—noU. 


ZZ  JUDGE    ADVOCATE  S    VADE    MECUM. 

liis  officers  thou<rlit  ]»ropor,  *  *  *  there  would  soon 
bo  an  end  of  all  other  ri<fht8  and  immunities.  Some  have 
thoui^ht  that  unjust  attacks  even  u))on  life  and  property  at  the 
arbitrary  will  of  the  magistrate  are  less  dangerous  to  the  com- 
monwealth than  such  as  are  made  upon  the  personal  liberty  of 
the  sul)ject.  To  bereave  a  man  of  life,  or  by  violence  to  confis- 
cate his  estate,  without  accusation  or  trial,  would  be  so  gross 
and  notorious  an  act  of  despotism  as  must  at  once  convey  the 
alarm  of  t3'rann3'  throughout  the  whole  kingdom;  but  confine- 
ment of  the  ]>ersun  by  secretly  hurr3-ing  him  to  gaol,  where  his 
sufferings  are  unknown  or  forgotten,  is  a  less  public,  a  less 
striking,  and,  therefore,  a  more  dangerous  engine  of  arbitrary 
government.  And  yet,  sometimes,  when  the  state  is  in  real 
danger,  e%'en  this  may  be  a  necessary  measure.  15ut  the  hap- 
piness of  our  constitution  is,  that  it  is  not  left  to  the  executive 
power  to  determine  when  the  danger  of  the  state  is  so  great  as 
to  render  this  measure  expedient;  for  it  is  the  parliament  only, 
or  legislative  power,  that,  whenever  it  sees  proper,  can  author- 
ize the  crown,  by  suspending  the  habeas  corpus  act  for  a  short 
and  limited  time,  to  imprison  suspeetcd  persons." 

Sec.  0.  We  have  here  an  example  of  that  watchful  jealou.*;}' 
for  individual  i-ights  which  is  so  largely  evinced  in  the  history 
and  jurisprudence  of  our  English  progenitors.  Of  such  impor- 
tance to  the  liberties  of  the  people  do  they  regard  this  writ 
that  the  parliament  alone,  in  which  is  sup|)Osed  to  reside  the 
wisdom  and  integrity  of  the  nation,  can  suspend  its  operation, 
and  then  only  "/o/*  tt  short  and  limited  time!" 

Sec.  7.  Nor  has  the  constitution  of  these  states  been  silent 
upon  this  grave  question.  It  has  j)lainly  declared  when  this 
l)rivilege  of  such  high  dignity  and  value  may  be  witlulrawn  : 
and  as  the  writ  it.self,  and  the  practice  under  it,  were  drawn 
Irom  the  courts  of  l''ngland,  so,  doubtless,  was  it  designeil  to 
imitate  the  i)rudence  of  her  legislation,  which  guarded  them 
from  arbitrary  interference.     The  1st  Article  of  the  Constitu- 


MILITARY    AND    MARTIAL    LAW.  23 

tlon,  section  0,  provides  that  the  privilege  of  the  writ  of  habeas 
corpus  sliall  not  be  8UHpcn<le(i,  unless  when  in  cases  of  rebellion 
or  invasion  the  public  safety  may  require  it.  And  as  this  pro- 
vision is  found  in  the  article  enumerating  the  general  powers 
of  Congress,  the  inference  is  most  natural,  if  not  necessary, 
tliat  to  Congress  only  was  it  designed  to  refer  the  question  as 
to  when,  and  under  what  circumstances,  the  public  safety  may 
require  the  suspension  of  a  privilege  so  highl}'  ]»riyA'd  by  tin- 
citizen,  and  which  can  never  be  too  scrupulously  guarded  from 
infringement. 

Sec.  8.  To  Congress,  moreover,  is  expressly  reserved  the 
exercise  of  all  legislative  power.  The  laws  securing  the  privi- 
lege of  the  habeas  corpus  in  cases  where  the  civil  courts  have 
juri.sdiction,  are  the  result  of  the  power  so  especiall}'^  reserved. 
It  will  not  be  maintained  that  these  laws  can  be  directl}' 
repealed  by  any  other  authority.  Yet  the  establishment  of 
martial  law  is  a  virtual  repeal  for  the  time  bciiig  of  this  act, 
and  a  suspension  of  all  proceedings  under  it.  And  it  would  be 
difficult  to  assign  any  just  reason  for  attempting  indirectl}- 
what,  if  assumed  in  more  open  form,  would  be  regarded  b}'  all 
as  a  gross  usurpation  of  the  legislative  prerogative.  The  plea 
of  necessity  has  indeed  been  offered  as  a  reason  for  military 
interposition  in  special  cases;  but  necessity,  as  has  been  aptly 
said,  is  always  the  plea  of  tyrants. 

Sfx.  9.  This  view  will  be  fully  justified  by  a  reference  to  the 
opinions  of  such  jurists  as  Judge  Story,  Chancellor  Kent,  and 
the  present  Chief  Justice  of  the  United  States,  Judge  Taney, 
who  all  have  denied  the  existence  of  any  power,  except  Con- 
gress, to  suspend  this  great  writ.  ^fr.  JefTerson  himself  de- 
clared that  he  was  in  favor  of  "the  eternal  and  tinremitting 
force  of  the  habeas  corpus  laws."  It  is  not  likely,  therefore, 
that  he  or  his  associates  intended  to  bestow  the  right  to  inter- 
fere with  them  on  any  but  the  national  legislature.  It  was 
once  during  his  administration  (in  the  time  of  Burr's  rebellion^ 


24  JUDGE  advocate's  vade  mecum. 

proposed  to  suspend  the  writ.  The  right  was  not  claimed  by 
Mr.  Jefferson  in  any  form,  but  a  bill  was  introduced  in  Con- 
gress for  the  purpose,  which  passed  the  Senate,  but  failed  in 
the  lower  House.  Thus  we  liave  presented  in  striking  liarmony 
the  theory  and  practice  of  earlier  days  on  this  important  sub- 
ject.* 

»See  3  Story  on  Const.,  208;   4  Cranch,  75;  2  Kent  Com.,  300,  323;  Tucker's 
Blackstone,  App.,  292. 


Chapter  IL 


OF  THE  ORIGIN  OF  MILITARY  COURTS;  THE  SOURCES  OF 

THEIR  JURISDICTON,  AND  THE  TIME  WITHIN 

WHICH  IT  MUST  BE  EXERCISED. 


Sec.  10.  Before  proceeding  to  consider  the  sev^eral  subjects 
heretofore  proposed,*  it  will  be  proper,  in  this  place,  to  take 
a  cursory  view  of  the  origin  and  general  grounds  of  the  juris- 
diction of  military  courts. 

The  only  military  court  of  which  we  have  any  particular 
account  in  the  history  of  English  military  laws,  prior  conrtof 
to  the  establishment  of  courts  martial,  is  the  Court  '"a^y. 
of  Chivalry,  or  Marshal's  Court;  so  called  because  formerly  held 
before  the  Lord  Uigh  Constable  and  Earl  Marshal  of  England 
Jointly. f  Of  this  court  Blackstone  says  :  "  It  hath,  by  statute, 
cognizance  of  contracts  and  other  matters  touching  deeds  of 
arms  and  war;  and  was  in  great  reputation  in  the  times  of 
pure  chivalry,  *  *  *  but  is  now  grown  almost  entirely  out 
of  use,  on  account  of  the  feebleness  of  its  jurisdiction,  and  want 
of  power  to  enforce  its  judgments,  as  it  can  neither  fine  nor 
imprison,  not  being  a  court  of  record." 

Sec.  11.  The  Court  of  Chivalry,  in  England,  having  grad- 
ually fallen  into   disuse,  was  succeeded  by    the  law 

KnitlUh 

martial  contained  in  the  provisions  of  the  Mutiny  act,         Mutiny 

which  is  the  first  law  authorizing  the  king  to  appoint 

a  court  martial.      This  Mutiny  act  is  annually  re-enacted  by 

•See  Prcfwe.  f  Bl.  Com.,  Ill,  68. 


26  JUDGE  advocate's  vade  mecum. 

Parliament,  witli  sueli  amondinents  as  are  found  desirable,  antl 
may  l)e  traced  hack  to  the  days  of  Henry  the  Sixth.  "  Tiie 
80vercii!;n  power  of  the  British  nation  is  exercised  by  Parlia- 
ment, and  without  its  authorit}'  no  military  force  can  be  levied 
or  maintained."  To  the  king  alone  belongs  the  executive 
power;  yet,  by  the  provisions  of  the  Mutiny  act,  he  is  author- 
ized to  "ordain  articles  of  war,"  and  thus  does  he  become,  for 
his  military  subjects,  possessed  of  both  legislative  and  execu- 
tive authority. 

Sec.  12.    The  constitution  has  taken  l)ctter  care  of  the  rights 
of  our  citizens,  by  secui-ini'  to  the  Congress  all  legis- 

Articlesof  '      J  to  t>  f^ 

^*'"-  lative  powers,  which  cannot  be  delegated,  nor  even 

administered,  except  under  the  restraints  of  a  written  law.  In 
the  exercise  of  this  power  Congress  has  itself  ordained  a  mili- 
tary' code,  in  the  rules  and  articles  of  war,  which  each  officer 
of  the  arm}-  is  required  to  subscribe.  The  President,  as  com- 
mander-in-chief of  the  arm}'^  and  nav}',  is  the  executive,  who  is 
to  administer  this  code.  He  can  neither  add  to,  nor  take  from 
it;  and  tJiough  he  is  authorized  by  the  laws  to  make  rules  and 
regulations  for  both  army  and  navy,  they  cannot  be  inconsist- 
ent with  the  fundamental  law  of  the  land,  or  with  what  may 
be  called  the  groundwork  of  our  military  law,  as  expressed  in 
the  Articles  of  war;  neither  can  he  "ordain  any  penalty,  or 
military  crime  not  expressly  declared  by  act  of  Congress." 

These  Ilules  and  Articles  of  war,  having  no  limit  as  to  their 
duration,  must  continue  in  force  until  repealed.  They  were 
first  adopted  in  the  United  States  service  Septem- 
ber 29,  1789,  and  afterward  amended  and  readoptcd 
April  10,  1806.  They  were  chiefly  suggested  by  the  elder 
Adams,  who  furnishes  in  his  writings  an  interesting  account 
of  their  origin,  through  the  English,  I'rom  the  old  Koman 
service.  Thus  have  they  come  down  to  us,  modified  and  im- 
proved, from  a  people  who  excelled  in  the  art  of  war. 

Sec.  13.     It  is  in  jjlace  here  to  note  that  regulations  for  the 


ORIGIN    OF    MILITARY    COURTS.  27 

{jovorniuent  of  the  navy,  were  adopte  I  by  the  United 

*^  *'  I  ^  Navy   regii- 

States  Congress  in  1775  and  1799;  but  these  were  sub-  '"'ions, 
stituted  by  others  provided  in  the  Act  of  April  23,  1800.  "The 
35th  article  of  that  code  provides  for  the  convening  of  general 
courts  martial  as  often  as  the  President,  the  Secretary  of  the 
Navy,  or  commander-in-chief  of  a  fleet,  or  commander  of  squad- 
ron, etc.,  shall  deem  necessary.  These  navy  courts,  like  those 
in  the  army,  are  not  to  consist  of  more  than  thirteen  nor  less 
than  five  members.  A  marine  corps  is  also  organized  and  sub- 
jected to  the  laws  governing  the  navy,  except  when  in  service 
with  the  ai-my.  See  United  States  Xavj'  Laws — titles,  Courts 
Mnrlial  and  Marine  Corps. 

Skc.  14.  These  provisions  respecting  the  arniy  and  navy  in 
the  United  States  service  are  referred  to  because,  until  other- 
wise provided,  they  form  a  part  of  the  organizations  in  llicso 
states,  the  Confederate  Congress  having,  by  act  approved  Feb- 
ruary 0,  1861,  adopted  all  laws  of  the  United  States  in  force  in 
the  Confederate  States  November  1,  18G1,  not  inconsistent 
with  their  constitution.  So  far,  therefore,  these  establish- 
ments of  the  two  governments  rest  upon  the  same  general 
founflation. 

Sec.  15.  As  ccuirts  martial  are  invested  with  judicial  author- 
ity, which  may  be  exerted  in  matters  of  grave  and 

Importance 

vital  interest,  extending  to  reputation,  and  even  to   of  (H.nrts 

^  '  Martial. 

life,  it  is  important  to  determine  the  true  character 
and  extent  of  their  jurisdiction. 

The  constitution  provides  for  the  right  of  personal  liberty  in 
the  following  terms:  "No  person  shall  be  held  to  answer  for  a 
capital  or  otherwise  infamous  crime,  unless  on  a  presentment 
or  indictment  of  a  grand  jury,  except  in  cases  arising  in  the 
land  and  naval  forces,  or  in  the  militia  when  in  actual  service, 
in  time  of  wai-  or  ]»ublic  danger;  nor  shall  any  person  be  sub- 
ject, for  the  same  offence,  to  be  twice  put  in  jeopardy  of  life  or 
limb,  nor  shall  be  compelled  in  any  criminal  case  to  be  a  wit- 


28  JUDOE  advocate's  vade  mecum. 

ness  against  himself,  nor  be  deprived  of  life,  liberty,  or  prop- 
erty, without  due  process  of  law."  Const.,  sec.  7,  par.  13 ;  see 
also  par.  14,  same  section. 

Under  the  exception  contained  in  this  clause,  says  De  Ilart, 
"military  courts  take  cognizance  of  such  ?natters  as  fall  within 
their  competency,  and  proceed  against  defendants  by  due  pro- 
cess of  law,  which  terms,  applied  in  reference  to  this  subject, 
are  convertible  with  those  of  'by  the  law  of  the  land.'"* 

Sec.  16.  In  considering  particularly  the  jurisdiction  which 
General        may  bc  Bxerclsed  by  courts  martial,  we  will  inquire : 

grounds  fw  n         i   •    i         i      • 

thejnrisdic-       1st.  As  to  the  subjcct  matter  out  of  which  their 

tion  of  mili- 
tary courts,    authority  may  arise. 

2d.  As  to  the  particular  persons  who  are  subject  to  that  au- 
thority. 

Sec.  17.  So  long  as  the  army  maintains  a  legal  existence,  in 
conformit}'  to  the  laws  by  which  it  was  originated  and  is  pre- 
served, it  must  be  regarded  as  a  "constitutional  body."  And 
as  the  means  devised  for  its  maintenance  and  government  are 
derived  from  the  same  source  as  those  which  affect  the  masses 
at  large,  it  becomes,  and  must  continue,  an  object  of  legislative 
control.f  The  Articles  of  war,  already  referred  to,  are  the 
TheArticies  Tcsult  of  the  cxcrcise  of  tliis  power  to  control.     They 

of  War  the 

fumiamen-     form,  SO  to  spcak,  thc  fundamental  law  of  the  army; 

tal  law  of  ^  "^   ' 

the  army,  ^nd  are  designed  to  secure  that  order  and  discipline 
which  are  essential  to  its  existence.  To  this  end  they  define 
what  are  military  offences,  affixing,  at  the  same  time,  either 
the  appropriate  penalty  or  the  rule  by  which  it  maj-  be  ascer- 
tained ;  and  herein  they  are  "  clear  and  explicit,"  and  are 
sufficient  for  the  observation  of  all  military  tribunals  in  the 
regulation  of  their  j)roceedings.  Whenever,  therefore,  these 
llules  or  Articles  are  infringed,  some  military  offence  has  been 
committed,  and  the  jurisdiction  of  the  court  provided  for  its 
investigation  at  once  attaches,  and  can  be  exercised  lawfully 
by  no  other. 

*DeHart,  16.  t  Ibid.,  19. 


ORIGIN    OF    MILITARY    COURTS,  ETC.  29 

Sec.  18.     Besides  the  Articles   of  war,  the  general  regula- 
tions of  the  army  furnish  subjects  for  similar  inquiry 

/>  •  General 

and  examination  whenever  infringed  by  those  to  whom    Uegniations 

of  the  Army. 

they  are  addressed.  Although  they  do  not,  of  course, 
possess  the  character  and  force  of  law,  yet,  as  they  proceed 
from  the  highest  military  authority,  they  are  obligatory  upon 
all  to  whom  that  authority  extends.  They  are  a  "permanent 
body  of  rules  for  the  better  ordering  and  methodical  arrange- 
ment of  subjects  of  militaiy  concernment,  and  have  a  view  to 
establish  uniformity  in  the  affairs  of  the  army  by  determining, 
to  a  greater  or  less  degree,  the  requisite  minutiae  and  detail. 
Their  character,  while  mandatory,  is  also  ministerial,  and  pro- 
ceeding from  the  President,  claims  the  utmost  respect  and  obe- 
dience. They  are  not,  it  is  true,  in  the  nature  of  subordinate 
legislation  to  define  and  determine  offences  and  affix  penalties, 
for  that  belongs  to  Congress  alone,  *  *  but  in  the  nature  of 
orders  pertaining  to  the  executive  and  administrative  branches 
of  the  service,  and  though  thej'  denounce  no  punishment  in 
terms,  yet  the  neglect,  or  breach  of  their  requirements,  are 
referrible  to  the  established  laws  for  the  enforcement  of  disci- 
pline, to  which  they  appeal  for  an  appropriate  sanction."* 

Sec.  19.     The  third  and  last  source  of  this  jurisdiction,  con- 
sidered with  respect  to  the  subject  matter  out  of  which   f'""'om  "f 

i  *'  war  a  source 

it  arises,  is  the  "custom  of  war"  —  more  accurately   tk.D?"'"*"^ 
defined  as  the  "  unwritten  or  common  law  of  the  army." 

"  The  common  law  of  the  land,"  says  Chancellor  Kent, 
"includes  those  principles,  usages,  and  rules  of  action  applica- 
ble to  the  government,  *  *  *  which  do  not  rest  for  their 
authority  upon  any  express  or  positive  declaration  of  the  will 
of  the  Legislature."  Following  this  definition,  we 
ma}'  say  of  the  common  law  of  the  army,  or  cus-  "r,',!|',mTr 
torn  of  war,  that  it  embodies  the  principles,  usages, 
and  rules  of  action  applicable  to  the  service,  which  do  not  rest 

•DeHart.  19.  20. 


30  JUDGE  advocate's  vade  mecum. 

on  an}'  express  or  positive  law  or  wi-itten  rognlation  of  the 
arm}-.  It  must  not,  however,  he  ojjposi-d  to  any  such  law  or 
regulation,  and  must  always  be  well  dotined  and  certain  in 
character.  To  be  of  any  force,  it  must,  moreover,  relate  wholly 
to  the  particular  service  in  which  it  is  applied,  and  not  be  of 
foreign  growth.  Hence,  it  would  be  inadmissible  to  refer  for 
an  interpretation  or  application  of  any  custom  of  our  service 
to  the  course  or  practice  observed  in  another.  And  herein  a 
difference  may  be  observed  between  the  custom  or  common 
law  of  military  jurisprudence,  and  that  which  is  so  denomi- 
nated in  civil  proceedings  and  courts.  This  "custom  of  war  is 
sought  rather  as  explanatory  of  some  doubtful  question,  than 
as  a  source  of  authority  by  itsell'.  It  is  an  authority  which 
should  be  well  scrutinized  before  allowed  to  have  a  determin- 
ing influence."  And,  fiiiall}',  this  "custom  and  usage  of  the 
army,  when  considered  in  ccjntradistinction  to  the  positive  laws 
and  regulations  of  the  service,  is  generally  well  understood; 
and  when  adduced  in  illustration  of  the  ])ropriety  of  the  forms 
adhered  to,  or  the  interpretation  of  acts,  should  have  the  cer- 
tainty of  an  established  fact." 

Sec.  20.     Having  thus  glanced  at  the  jurisdiction  of  militarj'' 

courts  as  it  results  from  particulai'  sources,  viz. :  The 

cmfeiring     Articles  of  war,  the  llogulations  of  the  arm\',  and  the 

juriiidictiuu. 

unwritten  law  or  custom  of  the  sei'vice,  we  come  now 
to  inquire  as  was  proposed,  in  the  second  place,  concerning  the 
particular  persons  who  are  the  subjects  of  that  jurisdiction. 

These  persons  are  clearly  described  in  tlie  DGth  Ai-ticle  of 
war,  which  declares  "  that  all  ollicors,  conductors,  gunners, 
matrosses,  drivers,  and  other  persons  whomsoever,  receiving 
pay  or  hire  in  the  service  of  the  artilieiy  or  corps  of  engineers, 
shall  be  governed  by  the  liules  and  Articles  of  war,  and  subject 
to  be  tried  by  courts  martial  in  like  manner  with  the  oflicers 
and  soldiers  of  other  troops  in  the  service."  So,  also,  by  the 
97th  Article,  a  similar  provision  is  made  as  to  the  officers  and 


ORIGIN    OF    Mir-ITARY    COURTS,  ETC.  31 

soldiers  of  aii}'  troops,  whether  militia  or  others,  who  arc  mus- 
tered and  in  the  pa}-  of  the  government,  when  joined  and  act- 
ing with  the  regular  forces  of  the  Confederate  States.  These 
rules  are,  moreover,  extended  by  act  of  Congress  to  all  non- 
commissioned officers,  musicians,  artificers,  and  privates  in  the 
service.  All  such  persons,  therefore,  as  are  described  in  these 
Articles,  are  subject  to  military  control,  and  hence,  to  the  juris- 
diction of  courts  martial  whenever  the  occasion  arises  for  its 
exercise  as  to  such  persons. 

Sec.  21.  The  followers  of  the  army  who  accompany  it  and 
minister  to  its  wants  and  comfort,  are  numerous  and 

Followers  of 

various,  but  have  certain  privileges  allowed  tliem —  the  army, 
such  as  living  in  the  camp  boundaries,  and  protection  to  their 
persons  and  proj)ert3-.  These  ])riviiege8,  of  course,  are  granted 
on  condition  of  fidelity  to  the  state  and  subordination  to  the 
laws.  The  interests  of  the  service,  the  discipline,  and  even 
safety  of  an  armj-,  render  it  necessary  that  such  persons, 
though  not  belonging  to  the  army,  should,  when  accom))any- 
ing  it  in  the  field,  be  subject,  for  actual  crimes,  to  trial  by 
courts  martial.  But  this  rule  does  not  appl^'  in  time  of  peace 
and  under  ordinary  circumstances,  for  where  the  civil  juris- 
diclioti  exists  and  can  be  applied,  camp  followers  are  as  much 
entitled  to  the  usual  mode  of  trial  as  others,  and  when  charged 
with  crime  should  be  surrendered  to  the  civil  authority. 

iSKC.  2-.  Where  otfences  of  a  purely  military  character  are 
committed  by   such  persons,  such   as  insolence  to  a   Military 

ofli-meti     hy 

conjrnissioned  officer,  disobedience,  or  neglect  of  dut\',  n..ii-iniiit«iy 

liartifciv  liow 

th<»ugh  a  court  iiiurtial  could  not  take  cognizance  of  pun'si'^J 
them,  the  offeii<kr  may,  nevertheless,  be  Irequentl}'  sufficienth* 
])unislied  by  dismissal  from  the  camp  and  the  prohibition  of  all 
intercourse  with  the  troops. 

Skc.  28.  The  authority  to  jmiiish  individuals  not  strictly 
subject  to  military  law,  as  above  indicated,  is  the  result  of 
necessity;  and  as  it  owes  its  existence  to  no  positive  law. 
should  always  be  exercised  with  prudence  and  caution. 


32  JUDGE  advocate's  vade  mecum. 

Sec.  14.  The  60th  Article  of  war  dechires  that  "  sutlers  and 
retainers  to  the  camp,  and  all  persons  whatsoever, 

60th  Article  .  .   ,       ,  •  i         /.    i  i       i  >-  i 

of  w»r.  lui-  servnuf  icith  the  army  in  the  ticld,  though  not  enli.sted 

ten,  etc. 

soldiers,  are  to  be  subject  to  orders,  according  to  the 
Xjales  and  discipline  of  war." 

These  persons  are  designated  by  De  Hart,  substantially,  as 
follows : 

A  sutler  is  a  person  who  is  permitted  to  reside  in  or  luUow 
the  camp  with  food,  liquors,  and  small  articles  of  military 
equipment,  or  others,  for  general  use  or  consumption.  Every 
authorized  trader  within  the  bounds  of  a  camp  is  a  sutler. 
The  mode  of  his  appointment  is  designated  in  the  Hegulaiions 
of  the  army. 

Sec.  25.  A  retainer  to  the  camp  is  one  connected  with  the 
military  service,  or  business  of  the  camp,  b}'  pay  or 

Itetainors, 

•'«•  fee.     The  term   includes  clerks,  drivers,  guides,  and 

others  who  from  time  to  time  are  employed  in  the  public  ser- 
vice and  ])ai(l  at  the  public  expense. 
Sec.  2G.     Persons  serving  with  the  armies. — This  includes  all 
engaged   in   private  service  by  wages   from   individ- 

Pergonn 

gerviug        mii^  ^yi,Q  belong  to  the  army,  as  well  as  those  who 

with  th«  c 

*""^'  serve  by  engagement  for  public  hire. 

"Mixed  as  they  are  in  situation,  business,  and  interests  with 
the  military  body,  it  l)ec<)mes  necessary  that  they  should  be 
governed  b}'  the  laws  common  to  both.  *  *  *  Sutlers  and 
camp  followers  entering  into  a  new  society  having  peculiar  laws 
of  its  own,  by  tlicir  own  voluntary  act,  must  conform  to  those 
\^yni  —  as  such  is  an  understood  condition  of  their  admission. 
They  are,  therefore,  liable  to  receive  orders  from  their  military 
superiors,  and  are  to  act  in  conformity  thereto — though  rather 
in  a  civil  than  a  military  capacity.  These  persons  cannot  be 
called  on  to  perform  military  duty ;  but  in  all  that  relates  to 
the  maintenance  of  the  peace  and  order  of  the  camp,  the  ob- 
servance of  rights,  public  or  private,  the  arrangement  of  their 


ORIGIN    OF    MIMTAUY    COURTS,  ETC.  33 

goods,  liorsos,  arifl  carriages,  and  in  matters  pertaining  to  the 
police,  aafet}*,  or  convenience  of  tlie  camp,  they  arc  as  much 
liable  to  military  command  and  jiunishment  for  nonobservance 
of  the  same  as  the  enlisted  soldier;  though  they  are  not  com- 
pellable to  perform  the  actual  duties  of  a  combatant."* 

Sec.  27.  Military  cadc^ts,  under  the  opinion  of  Mr.  Wirt, 
United    States   Attorney -General,    are    amenable   to 

CadeU. 

military  law;    and  courts    martial    have,  since    that 
opinion,  exercised  jurisdiction  over  such  cadets,  though  tlieir 
authority  was  formerly  doubted.     The  practice  now  is  settled 
in  conformity  to  the  opinion  of  Mr.  Wirt. 

8kc.  28.  Having  thus  considered  the  several  grounds  of 
military  jurisdiction,  both  in  connection  with  the  subject  mat- 
ter out  of  which  it  grows,  and  the  various  descriptions  of  per- 
sons amenable  thereto,  it  will  be  proper,  in  concluding  this 
part  of  the  subject,  to  examine  within  what  particular  time 
this  jurisdiction  must  be  exercised. 

In  criminal  proceedings  before  civil  courts,  no  general  stat- 
ute of  limitationst  exists;    and  though   military  of- 

'=>  J  Statute  of 

fences  are  to  be  regarded  in  the  light  of  crimes,  this  Limitations, 
general  rule  which  allows  them  to  be  tried,  for  the  most  part, 
at  Any  time,  does  not  apply  in  cases  before  courts  martial,  in- 
asmuch as  the  88th  Article  of  war  j)rovide8  that  no  person  shall 
be  tried  by  these  courts  for  any  offence  committed  more  than 
two  years  before  the  issuing  of  the  order  for  sucli  trial,  unless 
by  reason  of  his  having  absented  himself,  or  from  other  mani- 
fest impediment  he  shall  not  have  been  amenable  to  justice 
within  that  time. 

The  order  dirofting  proceedings  against  the  party  must, 
however,  in  all  cases  have  been  issued  before  the  expiration  of 
his  term  of  service — for  if  once  discharged  from  his  eniiHtraent, 
he  cannot  be  afterward  arrested  for  trial  and  punishment  bo- 


*D«  Hfttt.  28.  1 4  Btack.  Cmo.,  901,  wore  ;  Whnnon'i  Ciia.  Lav.  312. 

3 


34  JUDGE  advocate's  vade  mecum. 

fore  a  court  martial.  But  tlie  expiration  of  hip  term  of  service 
even  before  sentence  pronounced,  ■would  be  no  bar  to  the  pro- 
ceeding's commenced  before  that  time:  the  principle  i>ein<;^  that 
if  the  jurisdiction  has  once  attached,  it  cannot  afterward  be 
ousted  bj-  mere  lapse  of  time,  but  the  court  may,  notwithstand- 
ing, proceed  to  sentence.  Upon  this  subject  our  author  re- 
marks : 

*'  It  has  been  questioned  whether  a  court  martial  can  exer- 
cise jurisdiction  over  a  person  after  the  expiration  of 

Opinions  '«     ,  .       ,  ,.  •  r  /v.  '.i      1         I  •! 

tostatuteof  hi8  term  ot   service  lor  an  onence  committed  wliilo 

Limitittionx. 

acting  in  the  capacity  of  a  soldier  or  seaman  prior  to 
such  period.  The  argument  against  such  power  is,  principally, 
that  unless  there  be  some  express  provision  giving  the  right, 
military  auth(jrity  of  every  description  ceases  necessarily  with 
the  period  of  enlistment;  and  that  if  such  person  be  liable  at 
all  after  the  expiration  of  his  term  of  service,  he  is  liable  at  all 
times,  at  all  places,  and  to  all  officers  who  have  commanded 
him.  *  *  *  Every  man  who  is  not  bouml  by  militaiy  en- 
gagements, and  the  laws  which  govern  those  communities,  is 
only  subject  to  trial  for  any  imputed  offence  b}'  the  common 
law  courts  of  the  land;  and  courts  martial  are  divested  of  all 
jurisdiction  over  such  persons  —  and,  therefore,  cannot  enter 
into  the  (]uestion  of  guilt  or  innocence,  and  are  not  the  proper 
tribunals  to  settle  such  fact. 

"  To  which  it  is  rei»lied  : 

Sec.  29.  "The  general  primii)le  ol'  law  is  that,  whenever 
any  act  is  prohibited  under  a  penalty,  and  no  limitation  affixed 
to  a  i)rosecution,  the  offender  is  amenable  at  any  time  during 
his  life;  and  were  this  principle  not  applicable  to  military  per- 
sons, it  is  evident  that  offenders  would  frequently  escape  pun- 
ishment, to  the  great  detriment  of  the  j)ublic  service,  because 
there  are  no  other  than  courts  martial  which  can  take  cogni- 
zance of  particular  crimes.  It  would  also  operate  much  to  the 
prejudice  of  the  public,  were  offenders  in  all  cases  to  be  brought 


ORir.IN    OF    MTT,1TARY    COURTS,  KTC.  35 

to  trial  lit  pui'ticuljir  jieriods  williiii  tlio  stututc  of  limitutions, 
if  any  exist,  and  thus  limit  the  authority  to  the  mere  time  of 
the  existence  of  a  particular  exigency  when  it  might  be  unable 
to  take  cognizance  of  and  decide  upon  a  single  offence. 

"Authority  is  given  (l)9th  Article  of  war)  to  courts  martial 
to  take  cognizance  of  the  class  of  crimes  indicated,  and  to 
punish,  either  by  the  arbiti'ary  declaration  of  the  law,  or  by  the 
discretion  vested  in  the  court.  If,  then,  the  time  is  not  limited 
bj'  any  statute  when  their  jurisdiction  of  these  offences  ceases, 
it  would  seem  to  be  putting  at  too  great  hazard  the  interest, 
the  Siifet}',  and  the  reputation  of  the  military  and  naval  service 
to  permit  offenders  to  escape  all  punishment,  and  thus  encour- 
age insubordination  and  violence,  asserting  a  privilege  for  the 
criminal  because  he  had  been  prudent  enough  to  restrain  his 
temper  or  regulate  his  conduct  until  no  judicial  notice  could 
be  taken  of  his  offences  before  the  expiration  of  his  term  of 
service  ! 

"  If  the  object  of  these  laws  was  intended  to  enforce  obedi- 
ence, and  to  promote  discipline,  and  ensure  order  and  safety, 
there  can  appear  but  little  ground  to  doubt  the  jurisdiction  of 
courts  martial  in  cases  like  those  now  considered.  Such  object 
is  apparent  and  admitted,  and,  therefore,  the  amcnabilit}-  of 
one,  for  the  commission  of  military  crime,  to  the  authority  of 
a  special  tribunal  created  for  the  trial  and  ]iiinishment  of  such 
offenders  is  not  to  be  changed,  because  between  the  commission 
of  the  offence  and  the  time  of  the  assembling  of  the  court  he 
may  have  changed  his  official  relations  or  professional  char- 
acter," 

Skc.  30.     It  has  been  contended  by  some   that  the  United 
States  Supreme   Court  had    appellate  jurisdiction  in 
certain   military   cases,  and  that  a   mandator}'  writ   ti-nofcirii 
from  that  court  would  be  obeyed  by  a  court  martial.*   miiiury 
But  this  appears  to  be  contrary  to  the  opinions  of  the 


•  O'Brien't  MiL  Law,  tti. 


38  juboE  advocate's  vadk  mecum. 

best  jurists,  and  to  be  supported  by  no  precedent.  No  doubt 
l»otb  conciirroiit  :ui(l  appcllati' juristiiotion  over  niilitavy  ottonces 
might  have  been  conferred  on  the  civil  courts,  but  this  does 
not  aj)pcar  to  have  been  done,  and  in  the  absence  of  any  ])ro- 
vision  to  that  effect,  the  jurisdiction  of  tlie  military  tribunals 
must  bo  roj^arded  as  exclusive.  Nor  have  tlic  civil  courts  a 
right  to  take  cognizance  of  a  strictly  military  offence  by  the 
common  law.  On  this  point  Chancellor  Kent  remarks  :  "  Mili- 
tar}'^  and  naval  crimes  committed  while  the  party  is  attached 
to  or  under  the  immediate  authority  of  the  army  or  navy,  and 
in  actual  service,  are  Jiot  cognizable  under  the  common  law 
jurisdiction  of  the  civil  courts.*  It  has,  moreover,  been  de- 
cided by  the  New  York  courts  that  a  party  on  trial  before  a 
naval  court  for  alleged  crimes  committed  on  the  high  sens,  was 
not  amenable  to  the  civil  authority-  upon  a  similar  charge. j 

Sec.  81.  The  distinctions  thus  established  by  the  United 
States  Courts  and  jurists  would,  no  doubt,  be  received  as  law 
in  the  absence  of  any  sj^ecial  provision  by  Congress  in  the 
Confederate  States. 

Sec.  8:i.     It   remains  to  add  that,  as  courts  martial  derive 

their   authority   from    the   same   source  as  the  civil 

tiai'subi.i?!!-  courts,  the  decisions  of  the  former  within  their  prop- 

imtu  to   tli«  •    1      ,  ...  , 

rivii  cour(»,  cr  si)liei'e  are  ('(lually  oiilitleu  to  coiisideratioii  aii<l 
rrspect.  They  are,  however,  in  a  general  sense  to  be 
regarded  as  subordinate  to  the  civil  authority,  inasmuch  as 
their  i)Ower8  and  duties  are  exercised  only  under  a  limited 
and  special  code,  while  the  civil  coui'ts  are  charged  with  the 
administration  of  the  general  laws  of  the  land,  llenco,  as 
already  suggested,  it  has  been  made  the  duty  of  officers  to  aid 
ill  briiiiriiiiT  otfenders  a<rainst  those  laws  to  trial  before  the 
civil  authority,  and  to  respect  its  orders  and  decisions  in  all 
cases  arising  under  the  Habeas  Cori)us  acts. 


*  2  Kent's  Com.,  341.  f  Case  of  Captain  MoKeniie,  2  Kent,  342,  363. 


ClIAl'TKH    III. 


OF    THE    JUDGE    ADVOCATE. 


Sec.  33.  "We  are  now  to  consider  the  qualifications,  respon- 
sibilities, rights,  and  duties  appertaining  to  the  office  of  Judge 
Advocate. 

On   these  subjects  we  have  no  legislation  beyond  the  ver}- 
brief  summary  contained  in  the  Articles  of  war.     The 
rules  and  principles  now  existing  for  the  guidance  of     Advocate, 
this  officer   are  the   result  of  custom  chiefly,  and   hence   the 
difficulty  so  often  experienced  as  to  the  authority  of  the  court 
on  the  one  side,  and  the  rights  and  duties  of  the  Judge  Ad- 
vocate on  the  other.*     It   is   evident,   therefore,  that  it)  the 
selection  of  a  Judtje  Advocate  rcijard  should  always 
be  pai<l  to  his  experience  and  previous  knowledge,  to 
enable  him  to  discuss  the  questions  which  may  arise,  and  to 
present  and  explain  the  rules  and  principles  which  ought  to 
govern  the  court,  and  direct  his  own  course  in  the  conduct  of 
the  trial. 

Sec.  34.  The  Articles  of  war  require  that  this  office  should 
be  filled  by  ^ome  fit  person;  and  it   is  important  to    i^  nt  pfm-n 
ascertain,  in  the  first  place,  the  parti<ular  qualifica-   '^'"'""^•' 
tions  necessary  to  such  fitness. 

"  It  is  generall}-  conceded,"  says  I)e  Ilart,  "  that  for  a  proper 
discharge  of  this  office  there  is  needed  qualifications  n,,  ,naiifl- 
and  attainments  of  more  than  ordinary  possession; 

•Dcllart.  .101. 


38  JUDOE  advocate's  vade  mecum. 

that  as  the  duties  are  multifarious  and  biglily  important,  and 
therefore  responsible,  there  should  be  corresponding  ability; 
a  fitness,  in  a  word,  only  to  be  derived  from  experience  and 
knowledge  of  military  life,  its  laws,  customs,  and  modes  of 
discipline,  together  with  a  competent  acquaintance  witli  the 
principles  and  maxims  of  criminal  jurisprudence,  and  b}'  which 
the  proceedings  in  the  ordinary  law  courts  of  the  country  are 
regulated.  The  particular  rules  for  the  government  of  military 
judicial  proceedings  cannot  be  found  in  the  laws  alone;  they 
must  be  sought  in  the  history  of  cases,  or  the  treatises  of  mili- 
tary authora :  for  the  experience  of  the  most  practiced  indi- 
vidual is  not  large  enough  to  embrace  all  the  accidents  and 
contingencies  of  circumstance,  which  give  diversity  to  the 
subject." 

Another  author*  remarks  on  this  point:  "In  the  investi- 
gation of  criminal  offences  by  military  officers  unacquainted 
with  criminal  law,  unless  the  utmost  precaution  be  used,  there 
is  too  much  probability  that  the  sentences  of  courts  martial 
will  not  unfrequentlj''  be  altogether  illegal,  and  that  prisoners 
may,  in  consequence,  be  subjected  to  punislunent  —  even  to 
capital  punishment — although  such  sentences  were  not  sanc- 
tioned by  law." 

"  It  is  to  obviate  the  possibility  of  such  occurrences,"  sa3-8 
Captain  Hughes,  "that  Judge  Advocates  are  ap])()inted;  that 
there  may  not  in  any  case  be  a  failure  of  justice,  that  irregu- 
larities and  illegalities  ma}'  be  checked,  and  that  the  proper 
mode  of  procedure  *  *  *  niay  be  brought  to  the  notice 
of  courts  mai'tial  by  a  (!0nipeten4,  person. "■(" 

Sec.  o5.  Thus  is  it  manifest  that  the  proper  administration 
Importance    of  justicc  in  the  amiy  and  nav}^  depends  in  a  hu'ge 

of  iiualifica-  im-  ^     r^ ,  £•    a.\  ti 

tions  in        measure  upon   the  abiht}''  and   fitness  of    tlic  Judge 

Judge 

Advocaip.  Advocate,  in  whom  the  qualifications  and  attainments 
of  both   the  niilitar}-  and  legal  pi'ofessions  ought,  to  a  reason- 

«  Kennedy,  quoted  in  Hughes,  12,  187  f  Hughes,  12. 


OF    TIIK    JUDnE    ADVOCATE.  39 

able  extent  at  least,  to  be  united  for  this  specific  duty.  Such 
an  one  would  be  a  "fit  person"  for  this  important  oificc ;  and 
hence  it  lias  been  argued  that  the  appointment  of  parties 
from  civil  life  to  officiate  as  Judge  Advocates,  wjiile  not  op- 
posed to  any  law  of  the  service,  is  in  many  respects  ol)jec- 
tionable.* 

Sec.  36.  Having  thus  exhibited  the  qualifications  necessary 
for  the  pro))or  performance  of  the  duties  of  Judge  Advocate, 
let  us  next  see  what  are  his  peculiar  responsibilities. 

The  Judge  Advocate  is  the  law  officer  of  the  court.  He 
is  also   reciuircd    to    prosecute  for   the  government. t 

^  *  ■  Rosponsi- 

Upon    his   opinion    and    advice  the   members  of  the      JiuJIi'^^Ad^ 
court  rclj^  to  a  great  extent  for  direction  in  the  dis-      '^'^•'^*'- 
charge  of  their  various  duties. 

Sec.  37.  The  question  has  hence  arisen  whether,  in  event  of 
error  in  the  court  consequent  on  opinions  given  by 

1  T      1  «    1  1    •  •         Question   as 

the  Jud<>;e  Advocate,   and  to  an  extent  resulting  in   to  his  legai 

°  ^  liability. 

damage   to  others,   he  is  responsible  therefor  before 
the  civil  authorities. 

There  seems  no  doubt  that  the  members  themselves  are  thus 
responsible ;  and  it  is  claimed  by  some  as  a  legitimate  Momhera 
consequence  that  the  party  who  is  regarded  as  mainly  '"'''"'^' 
concerned  in  assisting  and  advising  the  members,  and  to  whose 
opinions  the}'  naturally,  in  a  large  measure,  defer,  should  at 
least  share  in  their  responsibility. 

'J'here  are  no  decisions  of  the  courts  on  this  point,  and  wo 
arc  left  in  its  discussion  to  the  o])inions  of  militar}' 

No  dpriKinnR 

men,  and  to  deductions  from  general  principles.  An  ""H'epoint. 
attorney  it  is  said  is  bound  to  exercise  care,  skill,  and  integrity 
in  his  profession,  but  is  not  accountable  for  mere  error  or  mis- 
take.J     If,  however,  he  proves  clearly  deficient,  or  is  guilty  of 


*  Hughe*'  Dulic8  of  Judge  Advocate,  12. 
t  fiaih  Article  of  War.  J  3  Black«tonc,  26— nofr. 


40  JUDGE  advocate's  vade  mecum. 

gross  neglect,  he  would  bo  liable  in  damages  to  the  injured 
party.  Some  English  military  writers  have  held  tlu'  same 
Opinions  on  P^'i^ciplc  to  bo  applicable  to  a  Judge  Advocate,  inus- 
t  ic  qiiebtion.  j^^^^pj^  j^g  j^g  jg  ^jjp  ]Qgr^\  representative  of  the  gov- 
ernment and  its  officers  in  the  court;  and  Captain  Hughes 
declares  that,  "  if  a  Judge  Advocate  should  mislead  a  court 
martial  by  counsel  which  is  contrary-  to  law,  he  is  equally 
responsible  to  a  court  of  justice  as  he  is  to  his  military  supe- 
riors."* The  same  author  remarks:  "Let  us  suppose  an  ac- 
tion bi'ought  against  a  court  martial  for  some  illegal  act  *  * 
clearly  proved  to  have  arisen  from  advice  given  ly  the  Judge 
Advocate.  Is  the  person  who  thus  misleads  tiie  court,  who  is 
expressly  appointed  to  obviate  a  failure  of  justice,  and  for  the 
more  orderly  proceedings  of  courts  martial,  whose  peculiar 
duty  it  is  to  jyrevcnt,  by  pointing  oijt  such  occurrences,  an 
undue  excess  of  authority,  excess  of  jurisdiction,  or  illegality 
of  proceedings,  to  escape  the  penalty  of  all  other  members 
of  the  court,  collectively  or  individually?  If  the  sole  object  of 
a  Judge  Advocate  was  merel}'  to  recoi-d  the  proceedings  of  the 
court,  any  clerk  could  perform  this  duty  equall}'  well;  but  the 
Judge  Advocate  is  appointed  for  a  difl'crent  and  more  im- 
portant purpose — it  being  his  duty,  in  conducting  and  record- 
ing the  proceedings,  to  obviate  a  failure  of  justice  and  the 
slightest  deviation  from  either  military  law  or  custom,  or  the 
law  of  the  land,  to  administer  oaths,  to  advise  on  points  of 
law,  of  custom,  and  of  form — the  veiy  ])erformance  of  which 
duties  under  military  orders  and  inslructions,  rendei-s  him  re- 
sponsible to  those  who  apj)oint  him,  and  to  the  laws  of  the 
country,  if  he  mislead  the  court,  as  M'hose  minister  he  is  ap- 
pointed to  guide  and  instruct. "f 

Sec.  38.  These  o])ini()ns  arc,  pei'hajjs,  mainly  founded  on  the 
phraseology  of  the  English  law,  and  cannot  be  relied  on  as  of 
authority  in  our  service.     Nevertheless,  there  are  strong  rea- 

*  Duties  of  Judge  Advocate,  14.  f  Hughes,  192,  193. 


OF    THE    JUDGE   ADVOCATE.  41 

Rons  in  favor  of  the  doctrine  they  maintain,  at  least  in  cases 
of  wilful  or  gross  neglect,  notwithstanding  the  opinion  of  De 
Hart,  that  to  attempt  to  fix  ''responsihility  on  the  Judge  Ad- 
vocate, even  in  such  cases,  would  not  only  be  unreasonable,  but 
ap]>roaching  the  ridiculous:"  for  it  is  a  known  genei-al  rule  that 
negligence  in  the  discharge  of  duty,  which  results  in  injury  to 
another,  subjects  the  offending  ]>arty  to  daniagos.  \Vl)ere  the 
fact  of  neglect  is  established,  wh^-  should  the  rule  not  apply  in 
military  as  well  as  in  other  transactions?  It  is  true  where  the 
Judge  Advocate  is  a  commissioned  officer  he  is  responsible,  as 
such,  to  the  military  authorities;  but  this  appertains  only  to 
the  discipline  of  the  service,  and  affords  no  redress  to  the  party 
suffering,  who,  in  ordinary  cases,  might  claim  damages  for  the 
wrong  received. 

Sec.  39.  And  j'et  it  must  be  admitted  there  is  great  diffi- 
culty in  establishing  a  connection  between  the  expressed  opin- 
ions and  advice  of  a  Judge  Advocate  and  the  decision  of  the 
court  with  which  he  has  been  associated  :  for  while  one  mem- 
ber may  have  been  greatly  influenced,  perhaps  guided,  bj^  such 
advice,  by  another  it  maj'  have  been  wlu»lly  overlooked  or 
disregarded.  It  ought  also  to  be  observed  that  the  members  of 
a  court  martial  exercise,  or  at  least  ought  to  exercise,  a  full 
discretion  in  their  decisions,  and  are  under  oath  "well  and 
truly  to  tr\-  and  determine  the  matter"  before  the  court, 
"without  ]»artialit5'.  favor,  or  affection."  But  to  whatever  con- 
sideration   the  suggestions  to   the    contrary   niay  be 

Jiidffo  Advo- 

entitled,  the  rule  appears  to  be  definitely  settled  in  «">»<p  n-.t  re- 
this  country  that  a  Judge  Advocate  is  not  responsible  "''*'"  '*"^" 
civiliter  for  his  opinions;  and  this  must  be  received  as  the  law 
of  the  service,  until  otherwise  determined  by  legislative  en- 
actment or  judicial  decision.  Upon  this  ])oint  De  Hart  re- 
marks: "The  person  oflficiating  as  Judge  Advocate  ppnnrt'* 
is  frequently  less  fitted  to  advise  the  court  than  any  tii<-.,ti<?ition 
individual    making   part  of  it;  and  of  course,   in   such  cases, 


42  JUDOE  advocate's  vade  mecum. 

liis  opinion,  if  ever  asked,  is  received   with   very  little  defer- 


ence 


"As  coiiits  martial,"  he  continues,  "must  exercise  a  discre- 
tion of  their  own  in  the  adoption  of'any  opinion  otfcred,  or 
the  acccj)tance  of  any  rule  for  the  government  of  their  pro- 
ceedings, and  are  not  at  all  hound  to  follow  the  opinions  of  the 
Judi^e  Advocate,  it  would  seem  that  any  decision  of  theii"8 
nhould  not  involve  in  an}"  liahility  to  future  censure  or  punish- 
ment that  individual.  It  is  true  tliat  his  agency  to  determine 
tluir  course  may  he  very  direct,  hut  still  he  is  without  a  judi- 
cative voice,  and  hut  ex])resses  an  opinion  in  the  ]ierformance 
of  a  duty."  If  douht  exists,  he  adds:  "  the  court  may  adjourn 
to  make  a  reference  of  the  question,  and  fortity  their  minds 
for  future  consideration"  of  the  subject. 

8ec.  40.  But  although  the  Judt^a'  Advocate  is  not  liable 
before  the  civil  courts,  it  must  not  be  inferred  that  he  is  ex- 
empt from  responsibility.     The  interests  of  the  ser- 

Rcuptinsible         .  i  />  i         • 

to  military    vicc,   the  court,   and  the  accused,  arc  irequentlv   in 

.lutlioiity. 

a  great  nieasurc  entrusted  to  him,  and  demand  his 
accountability. to  militar}'  law,  for  an}'  neglect  or  inellieiency 
in  the  discharge  of  his  duty.  Hence  it  is  an  established  rule, 
thai  no  person  can  appear  as  Judge  Advocate  who  is  not  sub- 
ject to  that  law,  so  that,  if  one  is  ajqiointeil  to  that  otHce  from 
civil  life,  he  becomes  by  accepting  the  position  at  once  amena- 
ble to  the  same  rules  and  conditions  as  a  commissioned  officer. 
In  both  cases  the  res))onsibility  and  obligation  are  the  same. 
"Nothing,"  says  Captain  Hughes,  "can  be  more  conclusive 
than  this,  fliat  although  the  duties  of  Judge  Advocate  are  of  a 
civil  nature,  yet  he  is  responsible  to  the  military  authority 
who  appoints  him,  and  consequently  is  amenable  to  military 
law."*     And  this  responsibility,  small  or  great,  must  be  borne 

alone.     He  cannot  have  the  assistance  of  counsel  be- 
lt Olltilleil       n  ,  I  J  I      • 

coiiiiHei,     fore  the  coui-t,  except  as  a  mere  legal  adciscr ;  nor  can 

cent. 

counsel  be  allowed  to  aid  in  the  prosecution  at  the 
♦  Hughes,  191— no<c  /  Do  Hart,115. 


Xot  oiitille.l 

tocoi 

oxce] 


OF    THE    JUDOE    ADVOCATE.  43 

instance  and  request  of  others.  This  would  frequentl}''  result, 
as  has  been  forcihly  objected,  in  "  mingling  private  animosities 
or  personal  resentments  with  the  stream  of  public  justice." 
In  the  case  of  Captain  McKenzic,  United  States  navy,  who  was 
tried  in  1843,  for  murder  on  the  high  seas,  the  friends  of  Mid- 
sliipman  Sjiencer  desired  to  emjiloy  two  eminent  law^'ers  to 
aid  in  the  prosecution,  by  the  examination  of  witnesses,  etc., 
but  the  court  after  fully  considering  the  subject  decided  that 
the  request  could  not  be  granted.  *'  In  cases  where  it  is  neces- 
sarj-  to  have  the  assistance  of  the  accuser  or  person  who  has 
sufiei'cd  by  the  conduct  of  the  accused,  all  that  can  be  insisted 
upon  on  the  part  of  the  prosecution  is,  to  ask  of  the  court 
permission  fur  such  person  to  remain,  after  l)eing  examined  as 
a  witness,  to  whom  reference  ma}-  be  made  for  information  or 
particulars  of  the  offence  charged.  And  if  a  person  bringing 
an  accusation  against  any  one  in  the  army  or  navy  is  not 
himself  an  officer  of  either,  he  can  onl}'  apj)ear  in  coui-t  as  an 
informer  or  witncf^s."* 

Sec.  41.     Our  next  inquiry  concerns  the  duties,  and  in  con- 
nection with  them,  the  rights  of  the  Judge  Advocate. 

T-iii  •  -iT-i-  1  1  Dutii'S  of 

it  Will  be  convenient  to  consider:  J'lrst,  such  as  de-      .t>>iko 

Ailvucata. 

volve  upon  him  prior  to  the  meeting  of  the  court ; 
and,  secondly,  those  in  which  he  is  engaged  during  the  trial  as 
an  officer  of  the  court.     And  first,  as  to  his  duties  prior  to  the 
trial  and  meeting  of  the  court. 

Sec.  42.     As  »oon  as  the  Judge  Advocate  has  received  a  copy 
of  the  order  for  the  convcnin<x  of  the  court,  he  should       ■  ,  ., 

O  A»  to  III* 

]>rocced  to  examine  the  charges  on  Avhich  they  arc  to  <''•"?«''• 
act.  Sometimes  a  mere  memorandum,  or  brief,  is  furnished 
him.  In  such  eiiscs,  it  devolves  upon  him  to  ]»ut  them  into 
]>roiier  shape.  If  they  are  sent  him  already  prej»are<l  from 
liead-quarters,  and,  nevertheless,  prove  upon  examination  to  be 
defective,  he  ought  immediately  to  return  them  for  correction 

*DcH«Tl^  320 


44  JUDGE    advocate's    VADE    MECIM. 

— it  l)(in;i;  a  (loulitful  question  whctlier  lie  can  liini>Jolf  amond 
tliciii  under  siicli  circumstances.  Hut  in  either  ease,  it  is  his 
duty  to  sec  tliat  the  charges  are  proper!}*  framed,  free  from 
le<:;al  defect,  and  witii  the  jirecision  an<l  distinctness  which  the 
law  requires,  hefore  tlie  prisoner  is  called  on  to  plrdd  to  them. 
Tiic  particular  nature  of  the  charges,  their  form,  Kubstanec, 
and  the  answers  to  them,  will  be  considered  in  another  place. 
Sec.  4;{.  Having  ascertained  that  the  charges  are  free  from 
reasonable  exception,  the  Judge  Advocate  is  next  to 

Copy  of  I  »  .S 

hl'^MiT'"  ^^^  ^'^^^  *  cojiy  of  them  is  furnished  the  ]>risoner. 
piixuiKT.        Qj^  ^j^jg  gjjijjpgt,^  Major  Hough,  quoted  in  the  work  of 

Capt.  Hughes,  remarks:  '-AH  writi'rs  on  military  law  state 
that  it  is  usual  to  furnish  the  prisoner  with  a  cop}-  of  the 
charges  on  which  he  is  to  be  tried;"  and  this  "is  not  only 
j>roper,  Init  advantageous."  And  Ca})t:iin  lluglios,  quoting  the 
Bombay  Military  Eegulations,  adds:  "Although  the  prisoner 
cannot  legally  demand  a  copy  of  the  charge  on  which  he  is  to 
be  tried,  or  object  to  any  difT'crences  which  may  appear  in  it, 
he  ought,  nevertheless,  to  be  furnislicd  with  one  as  early  as 
possible,  and  also  to  be  made  acquainted  with  whatever  altera- 
tions ma}'  be  subsequently  made." 

De  Hart  states  the  rule  in  this  connection  in  the  following 
terms : 

"  It  is  considered  the  <luty  of  the  Judge  Advocate  to  furnish 
the  prisoner  with  a  copy  of  the  charges  upon  which  he  is  to 
be  tried  at  as  early  a  period  as  possible,  in  order  to  avoid 
any  delay  in  th^'  progress  of  tln'  trial.  Where  a  prisoner  has 
received  a  coj)}-  through  anotbei-  ciiaimi'l,  as,  for  instance,  the 
Adjutant-General,  should  any  discrepancy  exist  between  them 
and  the  charges  submitted  to  the  court,  it  cannot  be  pleaded  in 
bar  of  the  trial,  but  tiic  court  would  under  such  circumstances, 
where  the  deviation  was  iiiadi'ial,  no  douI)t  atrord  the  prisoner 
time  to  pre])are  foi-  the  investigation  by  delaying  the  pro- 
ceedings.    This  course  is  nothing  more  than  common  Justice, 


OF    THE   JUDGE    APVOCATE.  45 

inasmuch  as  an  accused  person  should  Iiave  a  knowledge  of  the 
offences  charged  against  l)im  previous  to  trial,  and  sufficient 
time  allowed  to  enahlc  iiiia  to  defend  himself  against  them. 

To  soldiers  wlio  cannot  read,  the  charges  arc  read   b}'   the 
Adjutant;   or   the   Judge  Advocate  visits  the   place 
of  confinement   and    instructs   them    as    to    the    na-   wiio  cannot 

nad.  etc. 

ture  of  their  offences,  and  gathers  their  means  of 
defence,  list  of  witnesses,  etc.  The  attention  of  the  Judge 
Advocate  to  the  consultation  which  the  ignorance  and  peculiar 
situation  of  soldiers  call  for,  is  a  happ}'  means  for  the  exercise 
of  that  portion  of  his  functions  which  is,  to  some  degree, 
expected  of  him  as  counsel  for  the  prisoner,  and  to  prevent  the 
perpetration  of  injustice.  With  recruits  especially,  or  very 
young  men,  apprehended  at  a  distance  from  the  station  to 
which  the}^  are  attached,  and  often  without  any  previous  in- 
vestigation assigned  to  the  guard-house,  under  charge  of  deser- 
tion, *  *  this  intercourse  is  productive  of  the  best  results." 
Sec.  44.  It  next  becomes  necessary  to  summon  the  wit- 
nesses for  the  trial.     The  usual  course  is  to  append  a 

'■  '  hint  c.f  wit- 

list  of  those  for  the  prosecution  to  the  charges.    This,    '""''''    •'".'"- 

howcver,  cannot  be  demanded  as  a  right;  but,  ob-  """' 
serves  Captain  Simmons,  "unless  there  is  some  sufficient  cause 
to  justify*  its  being  withheld,  it  would  not  be  in  accordance 
with  the  existing  practice  to  refuse  the  prisoner  a  list  of 
witnesses  for  the  prosecution.  The  almost  universal  custom 
is  to  give  it  as  a  matter  of  course." 

Sec.  45.  The  Judge  Advocate  also  receives  from  the  pris- 
oner the  names  of  such  as  he  desires  to  be  called 
on  his  part,  and  ihcy  are  usually  summoned,  liut 
here,  too,  a  rcaHonaMe  and  sound  discretion  is  to  be  exercised, 
subject  to  this  limitation,  tliat  no  witness,  nor  an}-  commis- 
sioned officer,  shall  be  called  at  the  e.rpense  of  the  government^ 
unless  the  ends  of  justice  clearly  require  it.  If  sufficient  cause 
appears  wh}-  it  should  not  be  done,  such  as  the  great  distance. 


Anil  rwrir- 
pdfroniliim. 


46  JUDGE  advocate's  vadk  mecum. 

and  important  engagcmeiit.s  ol'  the  witness,  an<l  heavy  expense 
of  his  ti'ansportation,  the  .Iiulice  Advocate  may  decline  to  make 
the  summons,  and  may  submit  the  question  for  the  deeision  of 
tljc  court,  Avho  will  direct  what  is  proper.  Whore  this  course 
is  adopted,  tlie  whole  proceeding  connected  with  it  is  entered 
on  the  record  of  the  court.  Xor  is  the  examination  restricted 
to  such  witnesses  as  arc  thus  summoned;  but  either  party  may 
introduce  such  as  are  legally  competent,  so  long  as  his  case 
remains  unclosed.  Yet  it  is  deemed  desirable  and  "  most  ex- 
pedient that  the  lists  fln•lli^hl•ll  the  Judge  Advocate  slioiiKl 
contain  the  names  of  every  witness  whom  the  jiarties  intend 
to  call."* 

Sec.  45.     No    particular    form   is   rerpiired   in    summoning   a 
witness.     In   the  Knglish  service.  tl\e  Judge  Advocate 

No  form  .       .  i         •    i  i         •  /.  i  i 

rcjuiitd  in   18  invcstcd  With  authority  to  eniorce  the  attendance 

iiiiiiniotih. 

of  civil  witnesses.  With  us,  no  such  authority  exists; 
but  under  the  provisions  of  the  74th  Article  of  war  their 
depositions  may  be  taUcn  —  both  parties  being  represented  or 
notified  of  the  time  and  ])lace  at  whicli  such  testimony  is  to 
be  given. 

Sec.  4(i.  Jn  suinnioning  niililary  witnesses,  it  is  only  neces- 
sary for  the  .Indire  Advocate  to  advise  the  command- 
•*"""""•"■■'■  ing  officer,  or  the  War  department,  of  the  names  of  the 
witnesses  required.  The  pro[)er  instructions  for  their  attend- 
ance is  then  issued,  and,  of  course,  olteycd.  Lastly,  it  is 
_   ,  important   to    observe    that    all    witnesses  should  he 

Tu  lif  Hiim-  1 

""""■''■'"'y  sun.m.med  at  the  earliest  practicable  day.  This  i.s 
desiral)le  not  only  to  prevent  vexatious  delay,  but  to  enable 
each  party  to  be  entirely  prepared  for  the  trial. 

Sec.  47.     Having   progressed  thus  far,  it   is  now   ilesirable, 
though    not    incunilient,    tiiat    the    .ludge    Advocate 

Ili-Kt  t.>  pre-       ,  ,  ,  \      ■    i'  1         i.  \        •         I- 

pare- a  blithe  slioUHi    jircparc    a    linel,  or    short   anal3'sis,   tor   con- 
ducting   the    trial    and   lor   examination   of  the  wit- 

■*'  Kciincilv. 


OF    THE   JUDGE   ADVOCATE.  47 

nesses.  Tliis  will  grcatl}*  fiicilitatc  the  operations  of  the  court, 
and  be  of  mucli  assistance  in  the  progress  of  the  trial.  In- 
some  cases  the  "task  is  tlelegated  to  hitn  of  arran<^ing  a 
prosecution  on  particular  grounds  designated  by  superior  au- 
thority," and  it  is  then  his  duty  to  ascertain  the  "facts  in 
issue,  and  all  the  particulars  relating  thereto,"  and  be  prepared 
•accordingly,  lie  has  lastly,  under  authority  of  the 
commanding  ofiicer  of  the  post,  or  through  the  me-       \>\"r.c,7 

meeting. 

dium  of  an  officer  of  the  quartermaster's  department, 
or  in  the  absence  of  such,  on  his  own  responsibility,  U)  provide 
a  suitable  apartment  for  the  meeting  of  the  court.-    This  it  is 
his  duty  to  do. 

Sec.  48.  We  are  now,  secondly,  to  consider  the  duties  of  a 
Judge  Advocate  in  immediate  connection  with  the  trial,  Duties  an 
and  as  an  officer  of  the  court.  theoonrt. 

The  following  summary  of  what  may  be  denominated  the 
cardinal  principles,  to  be  kept  in  view  by  the  Judge 

Main  prinri- 

Advocate,  is  given  by  Captain  Hughes,  and  should  be  p'^" •"»''•"■• 
remembered  bj^  all  who  are  called  to  discharge  the  duties  of 
this  responsible  office  : 

"  That  justice  is  the  object  for  wliich  a  court  martial  is  con- 
vened and  the  Judge  Advocate  appointed." 

"That  the  great  principle  of  a  military  court  is  honor;  a 
conscientious  adherence  to  substantial  justice." 

"That  the  business  of  a  court  martial  is  not  to  discuss  points 
of  law,  but  to  get  at  the  truth  by  all  the  means  in  their  power." 

*'  That  a  Judge  Advocate  is  the  mainspring  of  a  court  mar- 
tial ;  that  on  him  the  court  depends  for  information  concerning 
the  legality  as  well  as  the  regularity  of  their  proceedings,  and 
if  he  errs  all  may  go  wrong." 

Sbc.  49.     The  authority  to  apjioint  a  Judge  Advocate  when- 
ever a  general  court  martial  is  assembled  is  derived      .    ,_, 
from    thr   r,!>th  Article  of  war.     The  observation  of    "'f^"' 
Do  Hart  on   this  subject,  is  as  apjtropriate   here   an<l   now  as 


48  junnE  advocate's  vade  mecum. 

when  he  wrolo.  lie  s:iys  :  "The  broad  interpretation  given  to 
all  h'lxishition,  touehin*^  tliis  authority,  is,  lh:it  he  who  lias  tlie 
power  to  aj)poiMt  general  courts  martial  has,  incidentally  as 
well  as  directly  by  statute,  the  ]>ower  also  of  appointing  some 
fit  person  to  act  as  Judge  Advocate."* 

The  60th  Article  of  war  above  mentioned,  and  to  which  the 
c'.nh  Artido  I'^'Ji'J*-'''  'i^  referred,  ver}'  briefly  adverts  to  the  special 
duties  of  this  officer,  and  presents  the  leading  idea  of 
what  they  were  designed  to  be. 

Sec.  50.    Besides  this,  there  has  been  no  special  legislation  by 

Congress  on  this  subject.     Nevertheless,  the  duties  of 

8i>ccmi  the  Judge  Advocate  are  generally  clearly  defined  by 

Ic'gisUtion. 

militai-y  writers.     Says  (leiu'ral  Kennedy  :  "A  Judge 
Advocate  appears  at  a  court   martial  in  three  distinct  charac- 
ters.    1st,  as  an  ofiicer  of  the  court,  for  the  purpose  of 

Y<'t  Ills  ihi-  ...  ,.  .....  , 

ties  Ki-MiT-  recordinir  its  proceedini;s  and  administering  the  re- 
ally dc-iinej.  »  1  o  » 

(|iiisiic  oaths;  2d,  as  the  adviser  of  the  court  in  mat- 
ters of  form  and  law;  ;)d,  as  pul)lic  prosecutor.  In  llu-  first  of 
these  chai-actcrs  he  is  of  course  subject  to  the  orders  of  the 
court,  who  may  direct  their  proceedings  to  be  conducted  and 
recorded  as  they  think  proper;  but  in  the  other  two  characters 
the  court  can  exercise  no  control  whatever  over  the  Judge 
Advocate,  as  in  the  pci't'onnaiice  of  these  duties  lie  must  be 
allowed  to  act  according  to  his  own  judgment  and  discretion." 
And  Captain  Simmons  remarks:  "The  duties  of  a  Judge 
Advocate  are  various  and  important.  He  records  all  the  acts 
ol'lhe  court,  and  all  oi'al  evidence — as  near  as  may  l>c  the  very 
wonls  of  the  witness;  he  notes  the  hour  of  assembly  and  ad- 
journment, and  generally  all  incidental  occurrences,  particu- 
larly the  clearing  of  the  court,  the  cause  thereof,  and,  where 
interlocutory  judgments  are  given,  the  decision.  lie  advises 
the  court  on  points  of  law,  custom,  and  form,  and  invites  their 
attention  to  any  deviation  therefrom." 

•  Pftgo  308. 


OF    THK    JUDOE    ADVOCATE.  49 

Sec.  51.     The   Judge   Advocate   may,  to  a   limited  extent, 
asBist   tlie   prisoner,   notwithstanding   he  is  required 

•\r  .  1         1.         Knw  far  he 

to  '^prosecute     for  the  government,     let,  in  the  dis-   maynidthp 

acniscd. 

charge  of  tlie  duties  of  liis  office,  lie  does  not  alwaj'S 
occup3'  preci.sely  the  position  of  prosecutor.  This  ie  evident 
from  the  three-fold  character  which,  as  already  shown,  he 
bears  before  the  court,  as  officer,  adviser,  and  prosecutor.  Upon 
this  point  General  Ki-iined}"  thus  lays  down  the  rule:  "It  is 
expected  that  the  Judge  Advocate,  if  consulted  by  either  a 
private  prosecutor  or  by  the  prisoner,  should  give  him  the  best 
information  and  advice  in  his  power;  but  an  opinion  which 
was  long  ])revalent  in  the  army,  that  it  was  the  official  dutj^'  of 
the  Judge  Advocate  to  assist  the  prisoner  in  the  conduct  of  his 
defence,  appears  to  be  no  longer  maintained.  To  affording 
him,  however,  such  assistance,  if  requested  as  a  favor,  1  sup- 
pose no  Judge  Advocate  would  ever  object;  and  if  a  prisoner, 
therefore,  wishes  to  avail  himself  of  it,  he  is  merely  to  make 
the  requisite  application,  which  will,  no  doubt,  be  complied 
with.  It  is,  however,  to  be  observed,  that  the  Judge  Advocate 
ought  not  for  a  moment  to  forget  his  duty  as  prosecutor;  and 
though  he  ought  on  the  defence,  as  well  as  at  all  other  times, 
to  restrain  the  prisoner  from  advancing  anything  which  might 
criminate  himself  or  prejudice  his  case,  he  is  still  bound,  by 
the  cross-examination  of  the  prisoner's  witnesses,  to  give  every 
effect  to  the  prosecution.  In  court,  therefore,  it  is  not  in  the 
power  of  the  Judge  Advocate  to  afford  the  prisoner  any  effect- 
ual assistance,  for  there  he  could  neither  advise  him  nor  frame 
questions  for  him.  nor  cross-examine  the  prosecutor's  witnesses, 
which  acts  could  alone  be  of  any  essential  benefit  to  the  prison- 
er; but  out  of  court  there  can  be  no  impropriety  in  the  Judg« 
Advocate  pointing  out  to  a  prisoner  the  manner  in  which  he 
might  best  conduct  his  defence  for  him.  A  defence,  however, 
caonot  be  ma<lc  wit ii out  a  knowledge  of  the  circunif>itancoii  of 
the  case,  and  it  would,  therefore,  seldom  be  prudent  for  the 
4 


oO  JUDr.E    advocate's    VADE    MECIM. 

prisoner  to  acquaint  tlio  Judiro  Advocate  with  the  real  nature 
of  the  transaction  alleged  in  the  charire,  or  to  disclose  to  him 
the  grounds  on  whidi  he  intended  to  rest  his  exculpation.  A 
prisoner,  however,  may  jjive  to  the  .Tml^e  Advocate  a  memo- 
randuu)  of  the  ])oints  on  wiiich  he  wishes  his  own  witnesses  to 
be  examined,  and  the  opposite  jiart}-  cross-examined,  or  a  list  of 
questions  to  the  same  effect,  and  request  him  to  put  only  such 
interrogatories  to  the  witnesses  as  he  tliinks  necessary,  and  to 
frame  the  questions  in  his  own  words." 

Sec.  52.  So,  likewise,  I)c Hart  referrini;  to  tliis  suhjoct  ob- 
serves : 

"It  is  evident  that  the  provisions  of  the  (iltth  Article  of  war 
were  intended  for  the  benefit  of  enlisted  soldiers,  whose  igno- 
rance makes  the  counsel  of  the  Judge  Advocate  much  more 
necessary  than  in  other  cases,  and  to  whom  it  most  forcibly 
applies.     It    would,   consequently,    be    incumbent   on 

Judge  Advo-       ^  *  i  ^ 

(•ate  to  see  ^^g  Judfjc  Advocatc  to  scc  that  no  improper  advan- 

iiii  improper  "  i        r 

takenoi^"     tagc  bc   takcn   of  the  prisoner  by  the  admission  of 

prisoner.  .,,  ,  .  ,  1,1  i-  ,!•  1 

illegal  testimony,  but  that  he  direct  him  how  to 
.present  the  tacts  on  which  his  delenee  may  hinge  in  the  most 
effective  light  to  the  court.  The  prisoner  ma}*  give  a  memo- 
randum of  the  points  on  which  he  wishes  his  own  witnesses 
examined,  and  the  ojiposite  party  cross-examined,  to  the  Judge 
Advocate,  and  request  him  to  j)ut  the  (piestions  in  his  own 
words.  In  general  terms  it  may  bo  remarked,  that  it  is  the 
duty  of  the  Judge  Advocate  to  shape  questions  in  legal  form  ; 
to  solve  all  difliculties  as  to  the  relev.-incy  of  facts  adduced  by 
either  paity;  to  see  that  the  prisoner  shall  not  sutler  from  a 
want  of  i<Mowledgc  of  the  law,  or  deficiency  of  experience,  or 
ability  to  elicit  from  witnesses  a  full  statement  of  the  facts 
bearing  on  his  case;  and  to  this  extent  both  the  court  and 
Judge  Advocate  are  bound  to  give  their  advice  to  the  prisoner. 
He  should  also  give  him  reasonable  aid  in  his  defence  cither 
in  point  of  law  or  justice,  ami  where  dou'itful  ([uestions  arise. 


OF    THE    JUDOK    ADVOCATK.  61 

rather  incline  to  the  side  of  the  prisoner;  and,  above  all,  never 
omit  an}'  circumstances  of  the  proceedings  having  a  tendency 
to  palliate  the  charges  against  the  accused.  As  to  the  pro- 
priety of  speaking  with  the  prisoner  before  triiil,  Major  Hough 
says,  "he  conceives  great  good  ma}'  often  result,  particularly  in 
the  case  of  a  private  soldier,  as  the  Judge  Advocate  is  more 
free  from  bias  it  may  be  supposed  than  any  other  person." 

Tiiere  is  some  difference,  it  M'ill  be  noticed,  between  the 
opinions  here  quoted  from  Captain  Simmons  and  Captain  De 
Hart,  as  to  the  duty  of  the  Judge  Advocate  to  the  accused 
irhile  in  court.  But,  under  the  language  of  the  67th  Article  of 
war.  there  would  seem  to  be  verj'  little  doubt  that  the  views 
expressed  by  the  latter  writer  are  correct;  and  leaning  as  they 
do  to  the  side  of  the  accused,  should  be  preferred,  especially 
where  he  is  without  the  aid  of  counsel. 

.Sec.  53.  It  is  conceded,  therefore,  that  either  party  has  a 
right  at  least  to  the  opinion  of  the  Judge  Advocate,  whether 
in  court  or  out  of  it,  u]K)n  any  questions  that  may  arise  in  the 
course  of  the  trial,  or  in  connection  with  it. 

Sec.  54.  We  are  thus  brought  to  consider  the  duties  of  the 
Judge  Advocate  in  open  court.  And  here  it  should  ,^j,  ^^^j 
be  premised  that  this  officer,  being  the  representative     H,',Titect"u' 

„     ,  ,  ...  fliallenKe. 

of  the  government  at  general  courts  martial,  is  not 
subject  to  challenge  on  any  ground.     He  ma}',  moreover,  be 
absent,  though  this  is  not  desirable,  during  part  of  tin*  time, 
and  may  afterward  resume  his  duties  without  invalidating  the 
]>roceedings. 

Sec.  55.  We  have  already  adverted  to  the  two-fold  duties 
of  Judge  Advocate,  as  public  prosecutor  and  legal  adviser  of 
the  court. 

Let  us  consider  them  more  particnhirly,  and  in  their  order. 
Under  the  authority  of  the  OUtli  Article  of  war,  it  is  settled 
that  the  Judge  Advocate  only,  or  person  appointed  to  act  as 
nach,  can  appear  as  prosecator  before  a  court  martial.*     The 

•  •!>•  Hart,  ,117. 


52  JUDGE  advocate's  vade  mecum. 


Judge 


conduct  of  the  prosecution  devolves  upon  him.  In 
comiucrthe   ^''^  discharge  of  tliis  duty,  lie  acts  agreeably  to  his 

own  judgment  and  discretion  ;  and  although,  as  an 
ojficer  of  the  court,  it  may  direct  him  as  to  the  particular  man- 
ner of  recording  and  arranging  the  proceedings,  yet  it  cannot 
control  him  in  the  exercise  of  his  peculiar  office  as  prosecutor — 
as  liy  direclinii;  him  to  withdraw  or  alter  a  charge,  to  withhold 
evidence,  den3-ing  his  right  to  reply,  or  placing  any  obsta- 
cle in  his  waj'  while  engaged  in  the  proper  discharge  of  his 
duties  —  for  he  is  appointed  wholly  to  conduct  the  prosecution, 
"to  search  out  the  tiuth  and  obviate  a  failure  of  justice."  He 
is  therefore  "  bound  to  lay  before  the  court  the  full  particulars 
of  the  circumstances  which  arc  considered  to  have  been  an 
infringement  of  the  ordinances  of  the  army,  or  perhaps  of  the 
state;  and  in  so  doing  must  produce,  without  partiality  or 
favor  to  either  part}^,  all  evidence  that  tends  to  elicit  the  truth. 
However  painful  it  may  be  to  his  feelings  as  an  individual  to 
sustain  a  prosecution,  whether  the  evidence  tends  to  conviction 
or  acquittal,  his  duty  to  the  state,  the  maintenance  of  disci- 
pline, ami  above  all  Justice,  demand  a  faithful  discharge  of  the 
duty."* 

Sec.  50.     Impartialit}-  is  one  of  the  first  duties  of  this  ollice, 

though   from   the  natural  desire  which  is  felt  to  suc- 

Duty  of  ini- 

imitiiiiity  in   (.^^Q^l   jj,   \vh:it   is   uiulerltiken,   liiis  iii<>-h  obliii-ation   is 

Jiulfii;  Auvo-  f^  •" 

""'"  too    frequently   overlooked.      The    Judge    Advocate 

should,  therefore,  "  be  particularly  carelul  not  to  let  one  part 
of  his  business  prejudice  him  in  the  conducting  of  another,  nor 
-lead  him  to  endeavor  to  bias  the  court  by  any  ambiguous  ex- 
planation of  the  law,  or  of  other  matters.  Truth  and  equity 
ought  to  be  conspicuous  in  courts  martial,  but  chicanery  never 
jjermitted  to  enter  the  door.  A  Judge  Advocate  should  never 
omit  an3'thiiig  in  the  record  which  may  be  of  service  to  the 
prisoner;  nor,  on  the  other  hand,  is  he  to  let  the  cause  of  pub- 

»  Hughes,  118, 


OF    THE    .lUndK    ADVOCATE.  53 

lie  justice  suifer  and   a   criminal   escape   unpunished   through 

lenity,  or  an}'  other  motive  whatever.* 

Sec.  57.     But  while  it  is  the  dut}*  of  the  Judge  Advocate 

thus   to  prosecute,  he  is  at  the  same  time,  in  some 

Judgfi  Ad- 
sense,  to  regard  himself  as  the  friend  and  counsel  of  Y'r'^'f  *]"! 

'  ~  friondofthe 

the  prisoner.  He  must  not  himself  put  leading  ques-  **^'="*''''- 
tions,  and  should  object  to  their  being  put  by  others.  He 
should  also  observe  the  same  rule  as  to  questions  tending  to 
criminate  either  the  prisoner  or  a  witness.  Particularlj'  is  a 
Judge  Advocate  to  prevent  any  improper  advantage  being 
taken  of  the  prisoner,  and  to  record  fully  and  fairly  ail  that 
appears  in  his  favor,  so  that  it  maj'  be  brought  to  the  view  of 
the  court  and  of  the  revising  authority. f  He  should  treat 
the  prisoner  liberally,  and  be  careful  that  nothing  is  brought 
against  him  by  surprise. |  In  short,  his  whole  duty  consists  in 
so  conducting  the  prosecution  that  the  whole  and  nothing  but 
the  truth  shall  be  revealed  and  put  on  record,  and  entire  jus- 
tice done  to  the  state,  the  service,  and  the  individual. 

Sec.  58.     Next,  and  intimately  connected  with  the  duty  of 
tlie  Judge  Advocate  as  public  prosecutor,  is  that  of 
legal  adviser  of  the  court.     This  latter  duty  is  very  •""'?'"A'1vo- 

o  J  J      cafe  aa  legal 

accuratcl}'   defined    in    the    following   passages   from   *  ^^''"' 
Tytlcr: 

"Another  important  duty  of  the  Judge  Advocate  during  the 
trial  is  the  instructing  or  counselling  the  court,  not  onlj'  in 
matters  of  essential  and  necessary  form,  with  which  he  must 
be  presumed  to  be,  from  practice,  thorouglily  acquainted,  but 
in  explaining  to  them  such  jioints  of  law  as  maj'  occur  in  the 
course  of  their  proceedings,  for  wliich  purpose  a  Judge  Advo- 
cate ought  to  instruct  himself  in  the  general  principles  and 
rules  of  law  and  in  the  practice  of  criminal  courts. 

"  In  the  performance  of  this  duty  he  will  always  bo  guided 


*  CspUin  Adye,  in  O'Bricn'g  MiltUrj  Law,  282. 
t  O'Brirn.  2«4.  J  O'Brien.  2H5. 


54  JUDGE  advocate's  vade  mecum. 

by  a  just  sense  of  his  official  cliaracler  and  situation ; 

JudpcArtvn.  .       ,.     .     ,  ,  .  . 

ra\c  lias  no  as  lio   lias  110  judicial  power,  nor  any  detenniiiativi' 

(letcrniiiiiiiK 

voire  or  j II-   voice  cither  in  the  sentence  or  interlocutory  oi)inions 

dicial  power.  •'       ' 

of  the  court,  so  he  is  not  entitled  to  reyulatc  or  dic- 
tate those  sentences  or  opinions,  or  in  any  shape  to  interfere  in 
the  proceedings  of  the  court,  further  than  hy  giving  counsel  or 
advice,  and  (unless  the  court  demand  it)  iiis  own  discretion 
must  be  his  sole  director  in  suggesting  when  that  may  be 
seasonable,  proper,  or  necessary." 

"On  every  occasion  when   llie  couii   (k'liiands  his  opinion,  ho 
is  bound  to  <ri\e  it  with  freedom  and  am])litude,  and 

M«Bt  (five  ^  ^  ' 

hm  opinion     even   when   not  requested  to  deliver  his  sentiments, 

when   re-  *  ' 

quired.  j^j^  duty  rcquircs  that  he  should  put  the  court  upon 
their  guard  against  an}-  deviation  either  from  any  essential  or 
necessary  forms  in  their  proceedings,  or  a  violation  of  material 
justice  in  their  final  sentence  and  judgment. 

"A  remonstrance  of  this  nature  urged  with   due  tt.'iiiporaiice 
.,  and  respect  will  seldom,  it  is  i)resumed,  fail  to   meet 

May  remoli-  i  '  i  ' 

with  its  proper  regard  from  the  court;  l)ut  should  it 
ha])])en  that  an  illegal  measure  or  an  unjust  opinion  is,  never- 
theless, persevered  in,  the  Judge  Advocate,  though  not  war- 
ranted to  enter  a  dissent  in  the  form  of  a  ])rotest  upon  the 
record  of  the  ]iroceedings  (for  that  iinj)lics  a  judicative  voic»\), 
ought  to  insert  therein  the  O])inion  delivereil  by  him  upo;i  the 
controverted  jioint.  in  order  not  only  that  he  may  stand 
absolved  from  all  iiii])ulatit»ns  of  failuic  in  his  duty  of  giving 
counsel,  but  that  tin-  error  or  wrong  may  be  fairly  i>rought 
under  the  consideration  of  the  power  with  whom  it  lies,  i-ither 
to  ai)prove  and  order  into  eflect,  or  to  remit  the  ojjcration 
of  the  sentence." 

Sec.  59.     It  is  lioth  the  right  and  duty  of  the  Judge  Advo- 
cate where  a  difference  of  opinion  arises  between  him- 

Right  to  ,/.  ,      1  .  .... 

record  iiis      sclf  and  tlic  court,  to  insert  the  opinion  he  has  given 

opinion. 

in  the  proceedings  or  annex  it  to  them.    Indeed,  Gen- 


OF    THE    JUDGE    ADVOCATE.  56 

criil  Kennedy  ohserves,  liis  attendance  on  tlie  court  would  be  of 
no  use  whatever,  if  he  were  not  permitted  lo  insert  in  the 
record  any  opinions  of  importance  he  may  give  during  tlie 
trial,  wliether  adopted  by  the  court  or  not.  "But,"  he  adds, 
"a  Judge  Advocate  ought  certainly  to  refrain  interposing  his 
opinion  except  on  occasions  where  he  apprehends  the  probable 
occurrence  of  some  irregularity  or  illegality,  or  where  ques- 
tions of  importance  arise  to  the  proper  decision  of  which  he 
may  think  that  the  expression  of  his  sentiments  might  con- 
tribute. It  is,  however,  his  most  particular  duty  to  object  to 
the  admission  of  improper  evidence,  and  to  point  out  to  the 
court  the  irrelevancj'  of  all  such  matter  as  ma}'  be  adduced 
which  does  not  tend  to  prove  either  directly  or  consequentially 
the  charge  under  investigation."  And  "should  he  observe  the 
court  inclined  to  find  a  verdict  contrary  to  the  evidence,  it  is 
undoubtedly-  his  duty  to  endeavor,  by  the  expression  of  his 
opinion,  to  prevent  it  from  deciding  so  erroneously." 

Captain  Hughes*  refers  to  a  case  mentioned,  he  says,  by 
Major  Hough,  wherein  a  court,  having  acted  contrary  to  the 
advice  of  the  Judge  Advocate,  was  thus  rebuked  l>y  the  review- 
ing authority  : 

^*  JJisapproved :  Because  the  court,  having  taken  upon  itself 
the  decision  of  a  question  of  law,  instead  of  having  permitted 
the  exposition  of  law  given  by  the  district  Judge  Advocate- 
General  to  guide  it,  has  permitted  the  error  of  finding  the 
prisoner  guilty  of  manslaughter,  with  the  exception  of  the 
words  '  feloniously  and  wilfully' — the  first  of  those  words  being 
indispensable  to  define  the  crime  of  manslaughter;  thus  the 
court  has  affirmed  the  crime,  after  having  abstracted  the  es- 
sence which  constituted  it:  if  the  act  was  not  feloniously  done 
the  crime  charged  was  not  committed." 

Sbc.  60.     When  the  court  is  considering  the  sentence,  the 

•Page  124. 


56  JUDGE  advocate's  vade  mecum. 

Judge  Advocate  sliould  ex])ress  no  opinion,  lie  is 
Advocate       not  I'esponsible  ior  the  punishment  adjudged,  to  what- 

to  give  no 

opinion  M      evei*  extcut  he  ina}'  be  answerable    for  the   correct- 
to  Heutonco. 

ness  of  the  linding.  But  after  the  sentence  has  been 
passed,  there  is  no  objection  to  the  Judge  Advocate  ])<)inting 
out  anv  error  or  illegality  in  the  natui-e  or  degree  of  the 
„  .     ,     ,   punishment  awarded  by  the  court.*     lie  should  not 

Or  in  closed    1  '' 

^""'^*'  assume  the  office  of  prosecutor  or  adviser  in  a  closed 

court,  nor  give  an}'  opinion  at  such  time  unless  required  liy  the 

court.     This    is    the   icenc-ral    rule;    exci'plioiial   cases 

Except  '^  '  ' 

'*'"""■  iiiay,  however,  occur,  in  which  the  Judge  Advocate 

must  exercise  a  sound  and  proper  discretion.  If  the  court  is 
manifestly  proceeding  in  the  sentence,  or  any  of  its  delibera- 
tions, in  opposition  to  established  law  or  the  custom  of  the 
service,  it  would  then  he  his  duty  to  interpose  with  his  opinion 
and  a  statement  of  the  law  on  the  subject.  But  the  general 
rule  is  as  already  stated.  In  no  case  Avhere  the  question  is 
within  the  discretion  and  competency  of  the  court  should  the 
Judge  Advocate  attempt  to  interfere,  so  long  as  the  limits  of 
legal  authority  are  duly  observed  and  respcctod.f  It 
point's  for      is  ucvcr  (Icsirablc  to  seek  after  points  for  discussion, 

discussion. 

or  to  intrude  advice  upon  immaterial  (]uestions;  much 
less  should  a  Judge  Advocate  insist  on  placing  on  record  his 
opinions  upon  subjects  of  no  importance.  Such  a  course  natu- 
rally tends  to  irritate  the  court  and  unnecessarily  to  consume 
its  time.| 
Sec.  61.     The  court  having  now  met,  Hie  first  duty  of  the 

Judge  Advocate,  after  reading  aloud  the  order  con- 
vocifte't'.      veniiig  it,  is  to  sec  that  it  is  legally  constituted.     To 

gee  Court  .  _ 

is  lo-iiiiy       this    end    it  is  essential    that    the   number   of  oltlcers 

constituted. 

required  for  a  quorum  is  ])resent,  and  are  so  by  com- 
petent authority.     He  should  also,  before  proceeding  to  trial. 


«  Kennedy.  f  ^^  Hart,  328.  J  Same,  328,  329. 


OF    THE    .lUnOE    ADVOCATE.  57 

be  careful  to  administer  the  oath  required  by  tlie  OOth 

^  "^  Oath. 

Article  of  war;  and  be  himself  sworn  by  the  Presi- 
dent, as  directed  Iw  the  same  Article.     The  mode  of  adminis- 
tering; these  oaths  is  thus  described  by  De  Hart:  "  The 

"  -^  MoJe  of  ail- 

members  of  the  court  and  the  Judge  Advocate  stand  ;  """''stpring. 
the  pei*sons  to  be  sworn  lift  the  right  hand  ungloved,  when  the 
Judge  Advocate  recites,  in  an  audible  voice:  'You,  Colonel 
A  B,  Major  C  T),  Captain  E  F  (thus  naming,  with  his  rank, 
each  member  of  the  court),  do  «wear  that  you  will  well  and 
truly  try  and  determine,'  etc.,  following  thu  form  of  the  oath 
prescribed  in  Article  (19.  The  presiding  officer  then  adminis- 
ters the  oath  to  the  Judge  Advocate,  observing  the  form 
prescribed  for  that  officer  in  the  same  Article;  during  all 
which  time  the  members  of  the  court  remain  standing,  and 
observe  the  most  decorous  silence  and  attention." 

In  military  as  well  as  civil  courts  oaths  may  be  administered 
by  kissing  the  book  or,  as  above  described,  by  affirmation.  In 
the  case  of  Jews,  the}^  should  l>e  sworn  on  the  Five  Books  of 
Moses,  with  the  head  covered  —  the  Jew  not  regarding  any 
other  oath  as  valid.* 

Sec.  (52.  The  Judge  Advocate  must,  moreover,  see  that  the 
proper  opportunity  is  offered  the  accused  or  prisoner 

1  •  1  1      11  1  /.I  Oppf.rtunity 

to  object,  by  challenge,  to  any  member  of  the  court;   t.. challenge 

allowed. 

and  if  the  public  interests  require  it,  he  should  him- 
self exercise  this  right  of  challenge  where  it  is  demanded. 
These  requirements  must  not  only  be  observed,  but  it  must 
appear  on  the  record,  in  each  case,  that  they  have  been  com- 
plied with.  'J'his  record  must  be  written  out  each  day,  as  free 
from  erasures  and  interlineations  as  ])Ossiblo,  always  stating 
l»y  what  authority  the  court  has  been  convened.  For  the  form 
of  ihifi  heading,  see  Appendix. 

Sec.  03.     The  names  of  the  members  are  registered  on  the 

•1  Starkie.  ^2. 


58 


junoE  advocate's  vade  mecum. 


proceedings  according  to  seniority,  tlie  rank  and  rogi- 

Naincn  iif 

"•<"'"'"■".      nient  of  each  I>oinir  proncrlv  set  forth.     As  no  i)resi- 
'■"'■  dent  is  appointed  as  sikIj,  the  first  named  officer  in 

the  order  directing  the  court  is  the  president  thereof,  and  is 
the  senior.     Tiie  name  of  the  Judge  Advocate  is  in- 
."lotniiej a*     scrtcd  hist   ou    tlie    list.     Tins,  though  forming  part 

such.  ^ 

of  the  record  of  the  court,  Iiud  hetter  be  prepared  be- 
forehand. 

As  a  matter  of  convenience,  and  to  aft'ord  a  better  idea  of 
the  arrangement  and  relative  ])Osition  of  tlie  officers  composing 
a  court  martial,  the  annexed  plate  is  copied  from  the  work 
of  Captain  Hughes,  with  his  explanation.  "The  Judge  Advo- 
cate," he  says,  "  sits  opposite  to  the  president,  the  interpreter 
a  little  to  the  right,  and  the  witness  on  the  left  of  the  Judge 
Advocate ;  the  prosecutor  and  prisoner,  a  short  distance  bo- 
hijid  the  Judge  Advocate,  should  each  have  a  small  table  to 
enable  them,  or  their  counsel  or  friends,  to  write  upon;  but 
none  of  the  parties  siiould  sit  witii  their  backs  to  the  court; 
the  j)ublie,  military  and  civilians,  take  their  seats  around  the 
I'oom  at  a  short  distan(;o  from  the  court." 


Sec.  64.  The  court  being  thus  formed,  the  prisoner  or  accu.sed 
is  brought  before  it,  and  this  is  noted  by  the  Judge  Advocatp  as 
follows: 


OF    THE    JUDGE    APVOCATE.  5^ 

At  a  general  court  martial  convened  at on  the day 

of ,  b}'  virtue  of  General   Orders,  'So.  —    (here 

.  Korni  of  nr- 

describe  tlic  order),  was  arraigned  and  tried  Captain     raiKnmont 


-,  of  the  llegiment  of  ,  upon    tlie    following 


ami  oidor. 


charges  and  specifications — which  should  then  be  separatcl}' 
and  distinctly  set  out. 

It  is  usual  to  allow  an  otiicer  a  seat  upon  his  own  a])jili- 
cation.  This  apj)lication  is,  however,  in  the  cases  of  prisoner  ai- 
non-commissioned  officers  and  soldiers,  made  by  the  "^^  "*^*  ' 
Judge  Advocate.  But  in  all  cases  the  accused  or  prisoner 
hhould  stand  while  the  charges  are  read,  or  whenever  he  pro- 
poses a  question  or  addresses  the  court.  These  rules  apply 
equally  to  Witnesses. 

Sec.  65.  When  the  court  is  once  assembled,  none  but  the 
authoi'ity  by^  Avhich  it  has  been  called  together  can  in  any  man- 
ner interfere  in  its  proceedings.  The  president  of  the  p„,.p„  „f 
court  only  has  the  power  to  assemble  and  adjourn  it,  ^•'""e"  • 
and  to  preserve  order  during  its  sittings.  But  he  has  no  fur- 
ther power  except  as  a  member,  as  all  questions  of  whatever 
nature  which  arise  during  the  deliberations  of  the  court  must 
be  decided  b}*  a  majority  of  the  votes.* 

The   deliberations   of    the    court   are    with    closed  „,     .. 

Closed  doorK, 

doors.    At  other  times  it  is  open  to  the  public.     Upon  '''"'"■ 

all  questions  respecting  the  admission  or  rejection  of  evidence, 

and  npf»n  ])oints  of  law  or  custom,  a  majority  of  the 

,       .   ,  Tote*. 

votes  decide. J 

Sec.  66.  The  facts  of  closing  and  opening  of  the  court  must 
always  be  note<l  on  the  proceedings.  The  result  of  ^,^.^  ^^^ 
deliberation  of  the  court  upon  any  question  must  also  1^^,',"^  ^ 
be  stated. 

Sec.  67.  It  has  been  already'  suggested  that  the  prisoner  has 
the  right  of  challenge,  and  that  before  proceeding  to  trial  he 
should  always  have  the  opportunity  to  exercise  it.     If  no  ob- 

*  Kennedy.  f  Sianons. 


GO  JUDGE  advocate's  vapk  mecum. 


I'rUoiior 


Jcction  is  made,  tlie  trial  proceeds.  J^iit  if  tlie  prisoner 
Krn'm.N.f  object,  he  is  ro(jiiirc'«l  to  state  the  grounds  of  the  ob- 
jection, with  any  evidence  he  may  have  to  sustain  it. 
All  this  should  be  recorded  regularly  and  at  length  in  the  pro- 
ceedin-'s.  Who  are  liable  to  Ite  ehallen«icd,  and  the  manner 
and  ground  thereof,  will  he  considered  hereafter.  It  is  only 
necessary  here  to  remark,  in  this  connection,  that  the  dis- 
tinction taken  in  the  English  books  between  the  mode  and 
eftoct  of  the  challenge  in  the  case  of  the  president,  of  the 
court  and  that  of  an  ordinary  niemher  does  not  exist  with  us. 
In  tiie  English  service  the  aj)pointnK'nt  ol"  the  president  is  by 
special  warrant,  and  the  objection  to  him  is  decided  by  the 
appointing  power,  to  whom  the  question  is  formally  referred  ; 
but  here  the  members  of  the  court  are  all  apjiointed  by  the 
same  autliorily,  and  il'  llu'  challenge  to  the  president  should  be 
sustained,  the  officer  next  named  in  the  order  would  succeed  to 
his  position. 

This  right  of  challenge  belongs  as  well  to  the  Judge  Advo- 
cate as  to  the  accused,  and  should  be  exercised  when  occasion 
recpiires. 

Sec.  OS.  All  questions  of  this  nature  having  been  disposed 
of,  the  court  properlv  oriranized,  and  the  record  up  to 

Court  clear-  1         J  .'  f^  '  I 

ed.  wiKiii.       ^],jm  point  completed,  the  court  is  next  directed  to  be 
cleared. 

The  .Judge  Advocate  having  provided  several  copies  of  the 
order  by  which  the  court  is  convcneil,  for  its  use  (the 

JuilKe  All-  '' 

vociti- r.ii.iB   cojij.t  lioinnr  cleai'ed),  llic  diarizes  are  distinctly  read 

cliar>;cH  in  .-./.->  ^ 

'"""'■'•  ill   llu'   hearing  ol"  the  prisoner.     This,  says  Sir  C.  J. 

Napier,  is  essential  to  ascertain  "if  tlu'}-  are  specific,  for  un- 
less the  court  clearly  undei-stand  what  they  are  to  inquire 
into,  and  the  piisoncr  what  to  defend  himself  against,  the 
court  should  refuse  to  receive;  the  charges;"  and  it  is 
.iiiirKo^"       the  duty  of  the  Judge  Advocate,  notwithstanding  he 

not  to  bo  '  '  . 

jiroroedod      bas  examined  them  previously,  to  remonstrate  against 

upon  1  J  ' 

proceeding  upon  any  charge  which  is  ascertained  to 


OF    THE   JUDGE    ADVOCATE.  61 

be  defective.  But  whatever  doubts  arise  or  objections  are 
urged,  ouglit  to   be  recorded  in  the  proceedings.     It 

^"    cliarge 

shouul  be  remembered,  however,  that  wlicn  a  charge     tobcaiter- 

fil,  except. 

has  been  approved  by  proper  authority,  and  ordered  to  be 
investigated,  neither  the  Judge  Advocate  nor  any  other  person 
can  alter  it,  without  the  tonsent  of  such  superior  autliority 
having  been  first  olilaincd.*  Jiut  as  cliarges  arc  cliiefl}^  con- 
fined in  their  preparation  to  form  and  phraseology,  the  Judge 
Advocate  may  generally  modify  or  change  them,  either  as 
legal  necessity  or  particular  rules  require,  subject  to  the  lim- 
itation just  stated. 

Sec.  69.  The  charges  being  thus  read  in  the  hearing  of  the 
prisoner,  who  has  been  previously  regularly  called,  the  Judge 
Advocate  now  inquires : 

:  You   have  lieard  the  charges  against  you 

Arraignment 

just  read;  how  say  you,  are  you  guilt3"  or  not  guilty  ?  "^  prisoner. 

Sometimes  the  prisoner  stands  mute,  sometimes  he  confesses 
by  the  plea  of  guilt}-.     But  the  usual  plea  is  "  not 

PICM. 

guilty."     In    either  case,  says  Captain  Hughes,  the 
trial  proceeds,  for  it  is  essential  to  know  the  facts  and  particu- 
lars, and  to  report  them  to  those  who  are  to  pass  upon  the 
sentence  pronounced  b}-  the  court. 

Besides  these,  pleas  in  bar  are  not  unfrequentl}^  employed. 
But  whatever  the  nature  of  the  plea,  it  must  be  re- 

'  Plea  to  be 

corded.  Where  a  written  statement,  or  defence,  is  r<-cor.ied. 
made,  it  must  be  appended  to  the  proceedings,  with  the  de- 
cision of  the  court  thereon. 

We  shall  have  occasion  hereafter  to  treat  more  at  large  of 
the  defence  of  the  prisoner,  and  the  various  pleas  employed  for 
that  purpose. 

When  the  plea  is  thus  presented,  the  question  is  ready  for 
trial;  and  the  Judge  Advocate  directs  all  witnesses 
to  retire  until  called.  tvnuf 


•  Tytler. 


02  JUDGE  advocate's  vade  mecum. 

Sec.  70.  Application  inay  ut  tlii.s  Ptago  of  the  proceedings 
be  made  to  the  court  by  either  party,*  for  permisssion 

apply  f.ir       to  introduce  counsel.     It   is  conccMled  b}' all  that  the 

counsel. 

priBoncr  is  entitled  to  such  assistance.  Counsel  can 
in  no  case,  however,  addjrss  the  court,  and  should  be  so  ad- 
vised by  the  Judge  Advocate.  The  prosecutor,  also,  may  be 
allowed  the  aid  of  counsel,  but  such  assistance  is  always  "re- 
stricted to  giving  advice,  framing  questions,  and  offering  in 
writing  legal  objections  that  may  appear  necessary. f  "Tt  is 
certain,"  says  Dellart,  "that  under  the  language  of  the  law 
no  other  than  the  .ludge  Advocate  can  appear  as  the  prose- 
cutor before  a  court  martial."  lie  admits,  however,  that  some 
writers  entertain  a  different  opinion — but  the  Judge  Advocate 
ma}',  as  just  stated,  have  the  advice  and  assistance  of  counsel 
in  intricate  cases  where  it  is  desired. 

The  restriction  of  the  law  referred  to  by  De  Hart  does  not 
exist  in  the  naval  service,  and,  therefore,  it  is  said,  a  different 
rule  as  to  the  admission  of  counsel  prevails  in  that  service. 

Sec.  71.  The  parties  being  thus  prepared,  the  Judge  Advo- 
cate proceeds  to  o))en  the  case  by  a  brief  statement  of 

.Tudgc.^Jvo-  1  .      1  I       1  •  1  11 

cateopt'iiB     the  matter  to   be   tried  and  tlie  evidence  to  be  sub- 

tlie  ciue. 

mitted.  The  only  restrictions  imposed  upon  him  are 
that  he  must  introduce  nothing  disrespectful  to  the  court  or 
reprouciii'ul  to  tlit^  prisoner,  and  iiiusl  contiiie  liiinselt'  lo  the 
subject  matter  of  the  trial,  avoiding  as  much  as  possible  all  that 
is  foreign  to  the  charges  and  the  proofs  in  support  of  them. 
This  is  a  leading  rule  in  all  trials,  and  nowhere  is  it  more 
important  to  be  observed  than  before  a  court  martial.  This 
opening  of  the  Judge  Advocate  may  be  spoken  or  written.  In 
either  case  it  ought  to  be  recorded. 

Although  there  are  obvious  advantages  in  this  manner  of 
proceeding  in  the  oi>ening  of  the  case,  the  practice  in  trials  in 


*See  (uilc,  section  40.  '  f  Kennedy. 


OF    THE    JUDOE    ADVOCATE.  63 

the  United  States  service  lias  been  different.  "The  address," 
sa3's  De  Hart,  "is  deferred  until  the  evidence  has  been  rendered 
and  recorded,  and  the  defence  made."  The  Judge  Advocate's 
speech  or  address  is  tlien  made  as  a  9 reply,  and  embodies  the 
whole  subject.''* 

Sec.  72.     All  writings  laid  before  the  court  and  received  by  it 
must  be  dated,  and  duly  authenticated  on  the  part  of 

1  •  1  1    •       •         1  1  o    Writings 

the  party  presenting  any  such;  and  it  is  the  duty  of  iini*«i  in- au- 

tlieiilicatcil. 

the  Judge  Advocate  to  see  that  this  is  done.f 

Sec.  73.  Tiie  swearing  of  witnesses  is  next  in  order.  The 
oath  is  prescribed  in  the  73d  Article  of  war,  and  is  ^^^^^  ^^ 
that  ordinarily  administered  to  witnesses.  This  duty  *'<"^«««''- 
is  performed  l»y  the  Judge  Advocate  according  to  the  custom  of 
courts  martial,  though  not  prescribed  b}'  any  law.  In  naval 
courts  the  oath  is  administered  by  the  president.  It  is  import- 
ant to  observe  that  this  oath  must  ahvays  be  administered 
to  the  witness  before  a  full  court  —  that  is,  all  who  sit  on  the 
trial;  it  is  otherwise  nugatory  and  of  no  value  —  "for  no  act 
performed  by  part  of  a  court  can  be  legal." 

Sec.  74.  Objections  to  the  competency  of  witnesses  should  be 
made  invariabl}-  before  they  are  sworn;  and  the  ob- 
jecting party  ought  to  state  his  reasons  fully  and  at  ^I'{h'i!ir""'' 
the  same  time,  in  order  to  avoid  delay.     These  objec-  mXirbX/e 

pwraring. 

tions  should  always  be  entered  hy  the  Judge  Advocate 

on  the  proceedings  of  the  court,  of  which  they  sometimes  form 

an  important  part  in  the  e^-e  of  the  reviewing  authority. 

Sec.  7.'i.     It  lias  already  been  observed  that  when  the  charges 
arc  read,  the  court  i.**  usually  cleared  and  the  wit- 
nesses  directed    to   retire.     It   is   not   desirable  that   wh'v«i"n«Mi 

r<'lirp». 

they  should  hear  the  charges  read;  as  that,  it  is  said, 
"  has  a  tendency  to  put  them  upon  a  narrative,"  and  to  fur- 
nish them  with  dates  and  facts.     So  important  is  this  precnu- 

•Dc  Hart.  149.  f  Uugbcr,  64. 


G4  JUDGE  advocate's  vade  mecum. 

liun,  tlial  the  regulations  in   the   Bengal  service,  and  for  the 
Bombay   arni^',  expressly   prohibit  tlie  reading  of  charges  to 
any  witness/-' 
„    ,         ,      Sec.  70.     The  testimony  of  each  witness  should  be 

Testimony  of 

reoiVIedicp-  rccordcd  scpai-ately,  and  (ieneral  Kennedy  suggests 
aratey.        ^j^^  appropriate  manner  as  follows  : 

"  Lieutenant  A   B,  of regiment,  called  into  court  and 

duly  sw()rn."  The  evidence  being  given  in  and  concluded,  an 
entr}^  to  that  eftcct  is  made  by  the  Judge  Advocate. 

"It  is,"  saj's  the  same  writer,  "most  usual  to  take  iluwn  the 
evidence   by  way  of  nuestion  and    answer;    and    on 

How  J  J  1. 

recorded.  recording  cach  interrogator}',  the  party  putting  it 
should  be  distinctly  noted,  thus  :  Question  by  Prosecutor.  Ques- 
tion by  Judge  Advocate.  Question  by  Prisoner.  Question  by  the 
Court.  Sonu'tiiiu's,  Iiowever,  a  witness  gives  his  testimony  in 
the  way  of  narrative;  in  which  manner  it  must  be  taken  down 
in  writing,  and  the  Judge  Advocate  is  bound  to  adhere  to  the 
precise  words  of  the  witness."  The  Judge  Advocate  should, 
also,  insert  at  the  comniencenuMit  of  each  exaniinalion  Ij}'' 
what  i»arty  it  is  made,  as  for  example:  Examined  by  Trose- 
cutor,  C'ourt,  or  Judge  Advocate,  as  the  case  may  be;  cross- 
examined  by  Court,  Prosecutor,  or  .ludge  Advocate;  or  re-ex- 
amined liy  the  Court.  Proserutor,  or  Judge  Advocate,"  etcf 
Jt  is  essenlial  to  the  proper  conducting  of  tlie  trial 
order'of        ihut  tlic  ivguhu'  ordcr  of  examination  should  be  main- 

i-xiiinina-  .  ,  1,1,  • .  1  .  1  11  ,  •  ^1 

tiuiitubo      tained,  and    tliat  neither    pai'ty  should  question    tlie 

prcMi-rvcd. 

witness  until  lie  is  -^uiTrndei-ed  by  the  other,  llie 
Judge  Advocate  may  (juestioii  a  witness  who  has  been  exam- 
ined by  the  pi-oseeutor,  and  should  follow  the  interrogatories 
of  the  latter,  making  one  and  the  same  examination.];  But  he 
is  not  permitted  to  examine  //*  chief  any  witness  who  has  been 
cross-examined  by   the  accused;    altlioiigh   he    ma}'  re-examine 


*  Quoted  in  Hughes,  59,  60.  ffiO  Kennedy.  J  Same. 


OF    THE    JUDGE    ADVOCATE.  65 

as  to  new  matter  which  has  been  elicited  by  the  cross-exami- 
nation.* 

Sec.  77.     The  mode  of  examinin<r  witnesses,  of  taking  their 
depositions,   and    the    various    questions    relating   to 
evidence  in    this   connection,  will   be  more  properly      nucstiong 

improper. 

discussed   in   the  chapters   relating  to  trials  and  to 
evidence ;  but  it  Avill   be  useful   here  to  remark  that  leading 
questions  are  improper,  and  should  not  be  employed. 

^  11'  1       ^  Question*  to 

All  questions  must  also  be  reduced  to  writing  by  the  !""  "'luced 

^  w      J  to  writing 

party  offering  them,  and  then  read  aloud  by  the  ""'•''"'"'«' 
Judge  Advocate.  If  objection  is  made  to  any  question  the 
court  is  cleared,  and  a  majority  of  voices  determines  whether 
it  shall  be  asked  the  witness  or  rejected.  It  must  always  bo 
entered;  but  if  afterward  refused,  should  generally  be  ex- 
punged from  the  record,  unless  otherwise  agreed  between  the 
parties.  If  the  question  is  such  as  to  render  its  reading  before 
the  witness  objectionable,  the  Judge  Advocate  should  request 
to  have  the  court  cleared  before  it  is  announced,  and  then  state 
his  objection,  otherwise  the  witness  might  be  improperly'  led  in 
his  testimony.f 

No  question  by  the  court  can  be  objected  to  by  either  partj'. 
The   examination  of  witnesses   must   be   before   the 
whole  court ;  and  whenever  a  member  leaves  it,  the 
Judge  Advocate  should  suspend  his  record  of  the  proceedings. 

Sec.  78.     Documentary  or  written  evidence  is  of  two  sorts  — 
original  and  secondary  —  the  latter  being  such  as  is 

1  I     ■  •  1  mi  1  1       •  Pof-nmontftry 

embraced  in  copies  only.     Ihe  general  rule  is  to  re- eridonrc. 

mlea  a*  to. 

(piiro  the  original   to  be  produced,  where  it  can  be 
obtained.    Where  the  court  is  satisfied  that  the  original  cannot 
be  had,  a  copy  is  admitted.     For  this  reason  copies  of  „ 
official  records  or  other  official  papers  are  usually  ad-  "''"''•*^- 
mitted,  as  it  is  generally  impossible  to  produce  the  original  in 

*  Kf  nn»dj-.  t  De  Hart,  156. 

5 


Qiitwtioni 
by  court. 


66  JUDGE  advocate's  vade  mecum. 

such  cases;'  but  these  copies  must  always  be  properly  authenti- 
cated. Where  a  document,  whether  original  or  copied,  is  intro- 
duced, the  whole  must  be  read,  and  not  a  part. 

Sec.  79.     These  sulijccts  will    be    recurred   to  again  in  the 

chapter  on   evidence,  and  it  is  unnecessary  to  enlarge  upon 

them  here.     The  Judge  Advocate  should,  however,  be 

Judge  Advo  *^  ' 

t^aVd'oc'u"  C'li't'ful  that  all  written  evidence  introduced  at  the 
evidence  18  trial  bc  rccordcd  just  where  it  is  appropriate — that  is, 
evidence  bearing  on  one  charge  should  not  be  mixed 
with  that  referring  to  another,  but  only  in  connection  with  the 
particular  charge  it  is  designed  to  sustain. 

It  is  usual  when  written  proofs  are  introduced  to  note  the 
„  ,     fact  in  the  following  manner,  or  to  this  effect:   "The 

Manner  of  o  ' 

recording,  pi'osecutor,  witucss,  Or  prisoucr,  as  the  case  may  bo, 
here  hands  to  the  court  [describe  the  letter  or  document]  which 
is  read,  admitted  by  the  court,  and  marked  No.  1,  2,  3;  or  A,  B, 
C,  and  attached  hereto." 

Sec.  80.     There  are  certain  privileged  and  confidential  com- 
munications  Avhich    the   Judge  Advocate  should   re- 

Confidential  ,  ,  ,      ,  ,     .  .  , 

comniunica-  member  cannot    be  demanded  or  used  in  evidence; 

tions. 

thus,  a  witness  in  employment  of  the  government 
cannot  be  required  to  make  known  the  character  of  his  instruc- 
tions, or  any  secret  communication,  nor  can  the  correspond- 
ence between  the  government  and  its  agents  be  required  as 
evidence.  This,  with  the  military  instructions  and  orders  of  a 
commander-in-chief,  are  regarded  as  confidential,  and  privi- 
leged from  disclosure. 

Sec.  81.     When   the   evidence   of  a   Avitnoss   is   reduced   to 

writing,  it  is  the  duty  of  the  Judge  Advocate  to  read 
"ai.'t!fto*read  't  ovcr  in  opcu  court,  or  before  the  witness  leaves  the 
witiKHs  in     court,  if  he  so  requests,  and  thus  afford  an  opportu- 

open  court. 

nity  for  the  correction  of  errors.  Such  corrections  are 
always  to  be  entered  in  the  proceedings.  "  But  it  would  be 
obviously  improper  to  read  over  the  record  to  a  witness,  or  per- 


OF    TIIK    JUnOE    ADVOCATE.  67 

mit  him  to  refer  to  it,  when  under,  or  previous  to  a  cross-exam- 
ination." The  object  of  reading  the  evidence  to  the  witness 
being  only  to  avoid  mistakes,  it  should  only  be  done  when  his 
testimony  is  closed;  and  "no  erasure  or  obliteration"  should 
ever  be  allowed.* 

General  Kenned}'  remarks  that  a  "witness  may  even  correct 
his  testimony  the  day  after  it  has  been  I'ecorded." 
ihe  explanations  or  corrections  must,  however,  in  all  correct    uin 

testimony. 

cases  be  recorded  separately,  and  not  interlined,  or 

written  over  erasures. 

No  further  questions  remaining  to  be  asked,  the  witness  is 

directed  to  withdraw.     This  must  be  noticed  on  the 

Two  wit- 
record,  that  it   mav  apix^ar   that  no  two  witnesses   "psses  not  to 

-         '  '  ne examined 

were  examined  together.  together. 

Sec.  82.     The  Judge  Advocate  should  likewise  note  on  the 
record  the  hour  of  meeting  and  adjournment  of  the 
court  each  day;  and  at  the  close  of  each  day's  pro-  fi-om^dly  to 
ceedings  he  should  make  a  fair  copy  of  the  whole,  and     ""^ 
so  continue  through  the  trial.     At  the  meeting  of  the  court  on 
each  day,  he  should  call  the  name  of  each  officer  composing 
the  court,  noting  those  who  are  present  and  the  cause  of  ab- 
sence as  to  those  who  do  not  appear.    This  done,  if  a  quorum  is 
present,  the  Judge  Advocate  reads  aloud  the  proceedings  of  the 
previous  day,  and  having  recorded  this  fact  also,  the  trial  pro- 
ceeds.   If  any  errors  occur  in  the  record  of  the  previous  sitting, 
they  should  always  be  corrected  when   the  proceedings   are 
read.     This   custom  of  reading   the  record   is  said  by  Major 
Hough    not   to   be   obligatory   upon   the   court,   and 
ought  never  to  be  allowed  in  the  presence  of  the  wit-  to'ber.*d't'o 

witnewet". 

nesses.     It  is  much  better,  however,  that  the  record 

should  be  carefully  read  over  each  day  to  ihf  court,  as  crron* 

aDd  omissions  are  thus  more  certainly  excluded 

•  Pimmonj.  in  rnpiitin  Ilngbef. 


68  JUDOK  advocate's  vade  mecum. 

Sec.  83.  Wlun  the  prosecution  lias  been  brought  to  a  close, 
the  Judge  Advocate  makes  a  minute  of  the  fact,  and 

I'roBccution 

citwed.  nQ  fui'ther  testimony  on  the  part  of  the  prosecution 

can  afterward  be  admitted. 

Tiic  defence  is  then  opened.  But  the  ccjurt  will  always  allow 
time,  :il  the  prisoner's  request,  to  enable  him  to  prc- 
..jMsned.  j^.^j.p  further  for  his  defence,  if  this  be  at  all  neces- 
sary. 

The  same  course  of  examination,  as  to  witnesses,  is  here  oh- 
Kxamination  ^"-'i'^'^^^  '^^  '"  thc  casc  of  the  prosccutiou — that  is  to 
say,  the  examination  m  ciiief,  cross-examination  hy 
the  prosecution,  and  re-examination  hy  the  prisoner.  When 
his  evidence  is  closed,  he  may  address  the  court,  and  present 
whatever  considerations  he  can  to  defeat  the  prosecution.  If, 
however,  he  should  introduce  new  matter  into  his  defence,  the 
Jud^e  Advocate  may  rebut  it  by  additional  evidence. 

Wlien  the  defence  is  closed  the  Judge  Advocate  notes  the 
fact  on  the  proceedings,  and  no  evidence  of  any  kind 

Defence  1  O    '  J 

closed.  (jan  afterward  be  admitted  on  the  i)art  of  the  pris- 

oner. 

Sec.  84.  The  Judge  Advocate  may  now,  if  he  desire,  reply; 
lud  cA.ivo-  ''^^^i  if  necessary,  time  is  allowed  him  for  preparation. 
«ite  replies,  jj^  eaiiiioL  iulroducc  ucw  cvideiice,  unless,  as  already 
intimated,  for  the  purj)0se  of  i-ebutting  such  new  matter  as 
may  have  been  l»i'ought  out  by  the  defence.  But  he  may,  says 
Tytler,  ''recapitulate  and  methodize  the  import  of  his  evidence, 
and  strengthen  it  by  argument;  or  show  the  weakness  and 
insufficiency  of  the  reasoning  and  proof  on  which  the  ])risoner 
has  rested  liis  exculpation." 

Captain  Simmons  is  of  opinion  tiiat  the  Judge  Advocate  is 
not  entitled  to  reply  in  cases  where  the  prisoner  has  only 
drawn  inferences  from  the  evidence  of  the  i)rosociition,  or  elic- 
ited something  from  the  prosecutor's  witnesses  on  cross-exam- 
ination, even  though  the  tendency  of  such  observations  be  to 


OF   THE    JUDGE    ADVOCATE.  fS9 

reflect  on  the  prosecutor.  And  Captain  Dellart  considers  that 
addresses  to  the  court  are  seldom  called  for,  and  arc  quite  un- 
usual; thou£2;li  cases  may  occur  in  which  the  jiartics  deem  it 
advanta<i:eous  to  claim  and  exercise  the  right. 

Sec.  85.     "It  has  heen  said  it  is  not  the  duty  of  the  Judge 
Advocate  to  weigh  opposing  evidence,  and  discuss  the 
same  for  the  purpose  of  influencing  the  decision  of  .hUlc Advo- 

rate   in    ex- 

the  court;  yet  it  is  undoubtedly  his  duty,  should  he  »niiningthe 

observe  the  court  inclined  to  find  a  verdict  contrary 

to  evidence,  to  point  out  the  same,  and  prevent,  if  possible,  a 

wrong  decision,  and  to  enter  his   advice,  thus  given,  on   the 

record. 

"The  value  of  the  opinions  of  the  Judge  Advocate  entered 
upon  the  record  maj',  at  some  future  period,  be  well  demon- 
strated for  the  protection  of  the  members  of  the  court,  by 
presenting  with  more  particularity  to  the  attention  of  the 
approving  authority  the  merits  of  the  controverted  points, 
and  thereb}-  preventing,  at  times,  the  execution  of  their  judg- 
ment, which,  if  illegal,  would  render  them  liable  to  damages  in 
a  civil  action." 

Sec.  86.  The  court  may,  at  any  time  before  the  finding  of 
the  sentence,  recall  the  witnesses  and  re-examine  evi-     conrtmay 

recall  wit- 

dcnco  of  any  sort.     All  the  parties,  however,  should     '»«>''<■!"• 
be   present   when  this  is  done,  and  the  particulars  attending 
it  must  invariably  form  part  of  the  record. 

When  the  evidence  on  each  side  has  been  adduced,  and  the 
addresses  com])leted,  the  trial  is  at  an  end,  and  these 
facts  ought  to  be  distinctly  recorded. 

The  court  is  now  flosed,and  the  Judge  Advocate  reads  aloud 
from  a  fair  copy  of  the  proceedings  the  whole,  or  such  portion 
of  them  as  may  be  deemed  important. 

Sbc.  87.  It  18  hero  that  tho  Judge  Advocate  is  sometimes 
called  on.  in  special  cases,  to  discharge  the  important 

fimming 

duty  of  "summing   up,''  as  it   is   nailed,  the   whole     'v(<»»^ 
caueie. 


(U  JUDGE    ADVOCATES    VADE    MECUM. 

Upon  this  point,  Tj-tler  remarks:  "  Iji  complicated  cases,  in 
circumstantial  proofs,  in  cases  where  the  evidence  is  contradic- 
tory, or  where  a  number  of  prisoners  are  jointly  arraigned,  it  is 
expedient  that  the  Judge  Advocate  should  arrange  and  meth- 
odize the  evidence,  applying  it  distinctly  to  the  facts  of  the 
charge,  and  bringing  home  to  each  prisoner  the  result  of  the 
proof  against  him,  Italanced  b}'  the  evidence  of  exculpation  or 
alleviation.  In  ordinary  cases,  a  charge  of  this  kind  is  not  so 
necessary." 

"The  summing  up,"  saj^s  Major  Hough,  "should  not  assume 
facts  to  be  proved.  That  should  be  left  to  the  court  to  decide 
upon.  There  is  a  duty  to  be  performed  to  show  the  relative 
bearing  of  the  whole  evidence,  but  no  opinion  should  be  given 
by  the  Judge  Advocate."  And  again:  "besides  applying  the 
evidence  fairly  to  each  side  of  the  question,  the  Judge  Advocate 
should  inform  the  Court  of  the  legal  bearing  of  the  evidence; 
for  it  jwaj  be  that  the  evidence  may  moralh'  satisfy  the  court, 
and  yet  be  deficient  legally;  or  something  may  have  been 
admitted  which  ought  to  have  been  rejected;"  and  it  is  the 
duty  of  the  Judge  Advocate  to  see  that  on  these  points,  also, 
the  court  is  correctly  informed. 

Sec.  88.  Another  delicate  and  important  duty  devolves  upon 
the  Judge  Advocate  when  the  court  has  been  closed,  in  the  dis- 
charge of  wliich  he  must  exercise  a  sound  discretion,  and  this 
is  to  "guard  the  court  against  deviation  from  essential  forms, 
or  the  violation  of  justice  in  their  final  judgment."  In  doing 
this,  he  should  keep  in  view  his  duty  to  the  prisoner 

Duty  to  the 

prisoner.  j^q  igf^.^  t\y^m  the  government,  and  never  attempt  to 
urge  or  procure  a  verdict  of  condemnation  by  presenting  an 
argument.  It  would  be.  proper  for  him  to  point  out,  says  De 
Hart,  the  relevancy  of  testimony,  or  its  legal  value,  but  not  to 
attempt  to  weigh  it  and  decide  on  its  preponderance  to  the  one 
side  or  the  other — for  that  is  the  peculiar  and  exclusive  duty  of 
the  court.    He  should  distinguish  between  the  mere  ministerial 


OF    THE    JUDGE    ADVOCATE.  71 

and  the  judicial  character.     Of  the  first  it  belongs  to 

Portiliar  du- 

him  to  si>eak,  but  with  the  latter  he  cannot  in  any   ticHofjudge 

'  "      Advocate. 

manner  interfere.     He   cannot   even  protest   against 

the  Avrong  doing  of  the  court,  as  that,  it  is  said,  implies  a 

judicative  voice;  but  he  may  enter  his  opinion  given 

*'  'J  1  o  Cannot  pro- 

to  the  court  on  the  record,  for  the  consideration  of  **"'• 
the  reviewing  authority.  His  office  here,  in  short,  is  only  to 
counsel  and  advise,  and  never  to  order  or  direct.  And  such 
counsel  and  advice  he  is  to  give  fully,  and  to  the  best  of  his 
ability,  when  required  by  the  court;  and  always,  even  when 
not  requested,  to  call  their  attention  to  such  facts  and  circum- 
stances as  may  tend  to  avoid  error  and  injustice.* 

P'rom  such  considerations,  DcIIart  deduces  the  rule  '-that 
when  the  court  is  deliberating  upon  the  findings  or  ^ 

'^        ^  '-^  (jpneral  rule 

the  sentence,  the  Judge  Advocate  should  interpose  ^.'/.'idgeT" 
an  opinion  onl}'  when  there  is  danger  of  an  irregular 
or  illegal  decision  being  made;  and  that  in  all  questions  within 
the  discretion  or  competency  of  the  court  to  determine,  he 
should  take  no  part.  To  the  members  themselves  attaches  a 
responsibility  for  every  act;  and  while  they  honestly  observe 
the  limits  of  legal  authority  defined  for  their  guidance,  they 
are  independent  of  all  other  control." 

Sec.  89.     The   court   having  closed   their  deliberations,  are 
next  to  pronounce  their   several   opinions.     General 

'  '  Opinionii  of 

Kennedy  thus  states  the  practice  in  the  military  «'^<' <■"'""»• 
courts  of  (Treat  Britain  :  "The  .Judge  Advocate  now  proceeds 
to  take  the  opinions  of  the  members,  by  putting  to  each  the 
following  questions,  beginning  with  the  youngest:  'From  the 
evidence  given  for  and  against  the  prisoner,  and  from  what  he 
has  said  in  his  defence,  are  you  of  opinion  that  he  is  guilty  or 
not  gnilty  of  the  charge  preferred  against  him?'  And  as  they 
declare  their  opinions,  he  writes  them  down  sererall^'."     But 

•  De  Hart.  .123,  324,  325. 


72  JUDGE  advocatk's  vade  mecum. 

as  it  is  not  (lesiralilo  that   the  oi)inion  of  the  court 

How   taken.       , 

should  generally  he  thus  <)i>riily  expressed,  a  different 
plan  may  he  adojited,  and  the  ineinl»ers,  therefore,  frequently 
write  on  a  slip  of  paper  the  opinion  "guilty"  or  "not  guilty," 
or  with  such  qualifications  as  may  bo  required,  which  being 
handed  to  the  Judge  Advocate,  he  ascertains  and  announces 
the  result:  when  the  opinion  of  each  meniher  is  read.  This 
latter  course  is  perhaps  the  most  approved,  and  is  usually  fol- 
lowed in  this  country.  But  whichever  plan  is  adopted,  in 
arriving  at  the  vote,  the  Judge  Advocate  should  remember  that 
the  court  is  "  bound  to  exhaust  the  whole  of  the  charges 
which  come  before  them,  by  expresslj'  acquitting  or  convicting 
the  prisoner  of  each  allegation  that  is  contained  in  them."*  If 
a  charge  consists  of  several  specifications,  the  vote  should  be 
taken  on  each,  and  the  result  stated  in  the  record.  "As  the 
vote  for  each  member  is  given,"  says  DeHart,  "the  Judge 
Advocate  makes  a  minute  of  the  same,  which  should  be  care- 
full}'  retained  and  kept  by  him,  to  meet  the  possible  contin- 
gency of  proceedings  in  the  common  law  courts  touching  the 
legality  of  the  acts  of  the  court  martial.  *  *  *  \l^^  j^  i\^q 
proper  depository  of  such  secrets,  and  the  written  notes  made 
at  the  time  the  only  sui'c  del'ence  against  uucortainty  and 
error." 

Sec.  90.     The  court  having  decided  upon  the  guilt  or  inno- 
cence of  the  i)risoner,  arc  next  to  determine,  in  event 

Punislimentu 

voteii  for.  o(  coiivictioii,  tlic  j)unisiiinen t  to  be  inflicted.  And 
even  thoiigli  a  innnlu'i-  may  have  voted  tor  a('(juil(al  in  the 
findings,  he  must,  in  the  sentence,  vote  .some  punishment.  The 
Judge  Advocate,  therelbre,  proceeds  to  take  the  vote  of  each 
member  upon  the  punishment  to  be  awarded,  in  doing  which 
he  observes  the  same  forms  as  in  tiie  lindings  of  the  court. 
Sec.  91.     Each    member   should   vote  on    all   questions   prc- 

*  Eennodj. 


OF    THE   JUDGE    ADVOCATE.  78 

Rented;   and  it  is  important  that  this  fact  sliould  at 

MenibcrB 

least  be  capable  of  proof  b}^  the  record,  inasmuch  as      vinonaii 

rjiiegtions. 

it  may  be  necessary  to  know  what  the  particular  vote 
may  have  been — whether  a  majority,  as  in  ordinary  cases,  or 
two-thirds,  as  is  required  when  the  extreme  penalty  of  the  law 
is  inflicted. 

Where  the  judgment  of  members  diflfers  as  to  the  nature  of 
the  punishment,  it  is  usual,  saj's  Captain  Simmons,  to 

Qucstionii 

separate  the  questions:  first  to  ascertain  the  nature —      maybcdi- 
the  majorit}'  deciding;  then  the  qnanfnm.    This,  how- 
ever, need  of  course  only  be  done  in  those  cases  in  which  the 
punishment  is  not  already  fixed  b}'  law. 

iSKC.  92.  The  findings  and  sentence  of  the  Court  being  thus 
ascertained,  as  the  judgment  of  the  court,  must  be 

.TndpnPtit  to 

entered  on   the  record  ;  and  this,  observes  Kennedy,  be  carefully 

entered. 

must  always  be  done  in  the  Judge  Advocate's  own 
handwriting. 

Great  particularity  is  requisite  in  drawing  the  sentence  of 
the  court,  upon  which  Captain  Simmons  remarks  that.  "  with 
respect  to  the  wording  of  the  sentence  in  cases  discretionary 
with  the  courts,  no  special  form  is  necessary.  It  should  obvi- 
ously be  expressed  in  clear  and  unambiguous  language.  In 
cases  not  discretionary',  the  court  would  do  well  to  adhere  as 
literally  as  ]>ossible  to  the  terms  of  ihe  statute  or  Article  of  war 
by  virtue  of  which  the  punishment  is  awarded." 

The  findings  and  sentence  of  the  court  may  be  drawn   up 

as  follows : 

Findings  and  Sentence. 

The  court  having  maturely  weighed  and  considered  the  evi- 
dence adduced  in  the  case,  do  find  the  prisoner,  Cap-        F„rmof 

tain  A.  B.,  Regiment  of ,  as  follows:  '"'^* 

Of  the  Ist  Specification  of  —  Charge:  "Guilty." 
Of  the  2d  Specification  of  —  Charge:  "Not  Guilty." 
Of  the   3d   Specification   of  —  Charge :   except   the   words 
,  "Guilty." 


74  JUDGE  advocate's  vade  mecum. 

Of  tlu-  4lli  Specification  of —  Charge:  "Guilty,  but  attach 
no  criminality  thereto,"  and  "Guilty  of  the  Charge." 

And  (having  proved  the  prisoner  guilt}',  as  above  specified) 

the  court  do  sentence  the  said  Captain  A.  H..  —  Regiment, 

.  "to  be  dismissed  the  service." 

Dated  at  

J.  F.  L.,  Colonel,  etc., 

President  of  the  Court. 

S.  W.,  Captain,  etc.. 

Judge  Advocate. 

Or,  should  the  prisoner  be  acquitted,  (following  the  form  in 
the  heading  above)  : 

Of  the  1st  Specification  of  —  CMuirgo:  "Not  (Juilty." 

Of  the  2d  Specification  of  —  Charge :  "Not  Guilty,  and  Not 
Guilty  of  the  Charge." 

The  court  do,  therefore,  fully  acquit  the  said of  every 

part  of  the  aforesaid  charge. 

[Signed  as  above.] 

Sec.  93.     If  mitigating  circumstances  appear   on   thr    liial, 
such  of  the  court  as  desire  on  that  account  to  recom- 

Kecommen-  ,      i  .  i  ■ 

diitions   to    mend  the  prisoner  to  mercy,  may  do  so,  in  a  separate 

mercy. 

|)aper,  which  sliould  be  signed  by  the  concurring 
members  only.  This  the  .ludge  Advocate  should  attach  to  the 
record,  or  it  may  be  written  at  the  end  of  the  proceedings, 
but  never  inc()r})0i"atcd  with  the  findings  and  sentence  of  the 
court. 

Sec.  04.     The  .ludge  Advocate  should  sign  the  proceedings 

after  the  president  has  done  so;  and  they  are  not 

Procopuiiip^i  *  '  ^ 

tobesignci.   (.;,„,piot,e  until  the  signatures  of  both  arc  duly  affixed 
to  them. 

Sec.  OT).     It  sometimes   becomes   necessary  to   remand   the 
proceedings  to  the  court  for  revision  of  the  findings 

SometiineB 

rcmiin.ied.     j^,^j  seiitcncc.     In    sucli  cascs,  the   Judge   Advocate 
should  note  the  fact  to  the  following  effect : 


OF    TOE   JUDGE    ADVOCATE. 


76 


The  court  reassembled  at ,  by  order  of presi- 
dent [such  members  as  appear,  which,  of  course,  must  be  tbe 
same  as  before]. 

The  Judge  Advocate  having  then  read  the  order  reassem- 
bling the  court,  and  stated  the  alleged. defects  in  the  findings 
and  sentence,  the  court  proceeds  to  reconsider  them.  The  pro- 
ceedings are  all  recorded  by  the  Judge  Advocate,  as  before, 
and  the  conclusion  of  the  court  is  stated  as  the  "revised  find- 
ings and  sentence,"  which  should  be  signed  by  the  president 
and  Judge  Advocate,  as  already  indicated. 

Sec.  96.  The  OOth  Article  of  Avar  provides  that  the  Judge 
Advocate  of  every  general  court  martial  shall  trans- 

Ti>    be    sent 

mit,  with  as  much  expedition  as  circumstances  admit,   to  secretary 

'  of  war. 

tlie  original  proceedings  and  sentence  to  the  Secre- 
tary of  War,  to  be  there  preserved,  to  the  end  that  the  persons 
entitled  to  copies  may  obtain  them. 

Provision  is  also  made  in  the  army  regulations  on  this 
subject.     They  require  the   proceedings  to   be  sent, 

And  focom- 

without  delay,  to  the  officer  having  authority  to  re-  nmn-iing 

*"  »  ^  „fJircr. 

view  them  by  confirming  or  disapproving  the  sen- 
tence, who  is. to  state  his  decision  and  orders  at  the  foot  of 
each  case.  The  whole  proceedings  are  then,  in  cases  of  general 
courts  martial,  and  which  shall  require  the  decision  of  the 
president,  under  the  65th  and  80th  Articles  of  war,  forwarded 
to  the  War  department,  through  the  Adjutant-Creneral,  accom- 
panied bj-  copies  of  all  orders  confirming  or  disapproving  the 
sentence. 

Sec.  97.  The  regulations  also  require  that  where  the  same 
court  tries  more  prisoners  than  one,  arraigned  on  scp- 

Prinnneri  to 

aratc  and  distinrt  rharges,  the  court  is  to  be  sworn  at  »"  «t>»rrt«- 

the  commencement  of  each  trial;  and  the  proceedings 

of  each  case  must  l»e  made  up  separately.     A  copy  of  the  order 

appointing  the  court    is,  in  all  cases,  to  be  entered    on   the 

record. 


76  junr.E  advocate's  vade  mecum. 

Sec.  98.     The  35lli   Arlic-lo  of  war  authorizes  any  intVrior 
officer  or  soldier,  thiiikinir  himself  wronged   hy   his 

App«'alHfroni  .  , 

Reniincnui    suiienor,  to  comphvin   to  the  commandinjr  olhcer  ot 

Courts,  etc. 

the  regiment,  who  is  to  summon  a  regimental  court 
martial,  from  the  decision  of  which  either  party  may  appeal. 
The  duties  of  the  Judge  Advocate  are  thus  stated  in  tiiis  con- 
nection by  Captain  Hughes:  The  court  having  assem- 

Duties   of  J  1  r.  s> 

Judge  Ad-      bled,  the  appellant  and  respondent  are  called  before 

Tocate  oil  '  1  '  ^ 

appeals.  j^^  ^^j  ^j^^  Orders  for  assembling  the  court,  etc.,  are 
read.  The  Judge  Advocate  llion  informs  the  court  that  tlie 
case  is  an  appeal  from  a  regimental  to  a  general  court  martial. 
Both  parties  have  the  right  of  challenging,  and  the  Judge 
Advocate  should  put  the  usual  question  on  this  point,  to  the 
appellant  first,  and  then  to  the  respondent,  minuting  such  ques- 
tion, and  the  answer  tliereto,  on  the  proceedings.  The  mem- 
bers and  Judge  Advocate  arc  duly  sworn.  The  statement  of 
the  appellant's  wrongs  is  now  read  and  recorded,  who 
on  appeals.  gj.g^  addrcsscs  the  court  and  lays  his  grievances  before 
it,  and  then  adduces  evidence  in  proof  thereof.  The  appellant 
should  not,  in  an}'  case,  be  sworn.  The  examination  of  wit- 
nesses, who  must  all  give  their  evidence  on  oath,  is  taken  in 
precisely  the  same  manner  as  on  other  courts  martial.  When 
the  appellant's  case  is  fully  before  the  court  the  respondent 
then  replies  to  it,  adducing  such  evidence  as  ho  thinks  neces- 
sar3\  Neither  is  he  sworn,  unless  appellant  requires  it,  or  the 
court  considers  it  necessary  that  hr  may  depose  to  facts.  The 
trial  In-ing  titiisluMJ,  tin.'  opiiiinn  of  tiic  (.-ourl  is  now  given,  and 
may  be  thus  recorded  : 

1.  The  court,  having  maturely  weighed  and  considered  the 

evidence  adduced  in  this  case,  is  of  opinion  that  Private , 

regiment  of ,  has  failed  to  substantiate  the  grievanices 

complained  of  (or,  as  the  case  may  be,  has  substantiated,  etc.), 
viz  : 

2.  The  court  are  further  of  opinion  (should  such  bo  the  case)  * 


OF   THE   JUDGE    ADVOCATE.  t  I 

that  tlio  appeal  made  by ,  private  of regiment, 

is  vexatious  aiul  frroundless. 

3.  The  sentence  of  the  court  is  then  recorded. 

Sec.  09.     In  concluding  his  remarks  on  the  duties  of  a  Judge 
Advocate    as   an    officer  of  a   general  court  martial,  Captain 
Hughes  appropriately  observes:     '*  It  may  be  well  to  remind 
the  Judge  Advocate  that,  as  officer  of  the  court,  in 
recording  anti  conducting  the  proceedings  of  general      romrover 

flic  Jurlge 

courts  martial,  the  court  may  direct  him  to  perform  A.ivo.atc. 
these  duties  in  any  manner  it  may  deem  proper.  In 
obeying,  however,  and  carrying  the  orders  of  the  court  into 
effect,  the  Judge  Advocate  must  bear  in  mind  that  he  has  also  a 
most  responsible  duty  to  discharge,  and  that  it  is  incumbent  on 
him  to  submissively  and  respectfully  point  out  to  the  court  the 
slightest  deviation  which  may  occur  in  their  orders  from  estab- 
lished forms  and  rules,  Avhether  it  be  at  variance  with  the  cus- 
tom of  war  or  the  laws  of  the  land."  lie  is  responsible  that  the 
laws  "relating  to  trials  by  courts  martial  are  fully  acted  up  to; 
and  in  the  ab.sence  of  official  rules,  that  the  customs  of  the 
army  arc  adhered  to;  and  above  all,  that  those  who  are  ap- 
pointed jurors  and  judges  discharge  their  duties  without  ex- 
ceeding the  power  vested  in  them,  so  that  under  all  circum- 
stances 'there  may  not  be,  in  any  case,  a  failure  of  justice.'  " 

Sec.  100.     The  duties  of  a  Judge  Advocate  before  a  court  of 
inquiry  arc,  in  many  particulars,  similar  to  those  he 
is  required  to  discharge  before  a  court  martial,  though  "'"^k"  ^'^ 
much  more  limited.     They  are,  moreover,  often  varied  "^  ''»<«™''7- 
by  the  instructions  he  receives  from  the  authority  appointing 
the  court,  and  the  particular  subjects  to  be  examined.     ' 

Having  prepared  the  case  for  investigation,  the  next  duty  of 
the  Judge  Advocate  is  to  summon  the  witnesses  required,  and 
give  proper  notice  of  the  time  and  place  of  meeting.  He  doe« 
not  act  as  prosecutor,  but  he  is  both  to  administer  the  required 
oaths,  as  set  out  in  the  93d  Article  of  war,  and  U)  examine  all 


I)ufi<>p  of 

1t(v 
rourtii 


78  JUDGE  advocate's  vape  mecum. 

witnesses  brought  before  the  court.  It  is  his  duty  to  assist  the 
court  in  a  full  and  honest  inquiry  into  all  subjects  ordered 
to  Itc  investif^atcd,  so  that  a  just  conclusion  as  to  the  necessity 
of  further  i)roceedin«^s  may  be  arrived  at.  To  this  end  he 
should  arrange  and  methodize  the  evidence,  copy  all  ori<fiiial 
documents  into  the  proceedingt;,  and  roeunl  the  entire  trans- 
actions of  the  court,  so  that  the  whole  case  be  clearly  and  ex- 
plicitly presented  for  consideration  to  the  proper  authority. 
Although,  as  just  stated,  not  the  prosecuto/*  here,  he  is  still,  as 
before  a  court  martial,  the  legal  adviser  of  a  court  of  inquiry, 
and  as  such,  bound  to  instruct  the  members  in  matters  both  of 
form  and  law,  and  to  object  to  the  admission  ot'  all  iin])r()|»er 
evidence. 

Sec.  101.     The  Judge  Advocate  or  Recorder  of  a  court  of 
iuquiry   is  not   sworn    to   secrecy  as  before  a  court 

How  Hworii.  .11  .1  1     •  -111 

martial,  but  simply  to  record  impartially  and  accu- 
rately the  proceedings  of  the  court,  and  the  evidence  adduced 
before  it.*  In  conducting  the  proceedings,  the  same  rules  as  to 
form  and  order  are  generally  to  be  observed  mutatis  juutandis 
as  before  a  court  martial.  Opportunity  for  objecting,  to  the 
members,  by  the  usual  inquiries,  to  be  put  by  the  Judge  Advo- 
cate, must  always  be  afforded  the  accused.  Jle  should  also 
make  out,  from  day  to  day,  a  fair  copy  of  the  proceedings,  to 
be  read  to  the  court  every  morning.  A  full  copy  of  the  order 
convening  the  court  should  be  inserted  in  the  record;  and  the 
Judge  Advocate  should  be  careful  to  slate  that  the  court  was 
regularly  organized  as  the  law  requires,  that  the  necessary 
oaths  were  duly  administered  both  to  the  court  and  the  Judge 
Advocate,  and  that  the  accused  was  asked  if  he  had  objections 
to  any  member  of  the  court.  When  so  required,  Init  not  oth- 
erwise, the  opinion  of  the  court  should  be  given  on  the  merits 
of  the  case.     When  special  instructiond  are  ^iven  in  any  case, 


*  aoth  Article  of  War. 


OF    THE    JUDOE    ADVOCATE.  79 

they  should  be  read  to  tlie  court  by  the  Judge  Advocate,  and 
entered  on  the  record.  This  record,  wlien  completed,  should 
be  duly  authenticated  b}"  the  signatures  of  the  president  and 
the  Judge  Advocate,  and  by  the  latter  transmitted  to  the  au- 
thority convening  the  court. 

Sec.  102.  In  summoning  witnesses,  the  Judge  Advocate 
should  remember  that,  without   an  order   from   the 

Witnessci" 

court,  no  witness  is  to  be  called  at  the  expense  of     ^'^^o'^''- 
the  government,  nor  any  officer  summoned,  unless  it  is  clear 
that  the  testimonj-  is  necessary  to  the  ends  of  justice.* 

Sec.  103.  We  have  thus  completed  an  examination  respect- 
ing the  important  office  of  Judge  Advocate.  It  has  no  doubt 
been  observed,  that  topics  have  been  introduced  in  the  present 
chapter  which  appear  to  have  an  immediate  connection  with 
other  parts  of  the  subject}  but  it.  has  also  been  seen  that  they 
are,  at  the  same  time,  nearlj'  related  to  the  duties  of  the  Judge 
Advocate;  and  it  was  thought  better,  in  order  to  jiresent  a  con- 
nected and  coherent  view  of  those  duties,  not  to  separate  them 
in  the  discussion. 

*  Sec  Armj  Regulations. 


Chapter  IV 


COURTS   OF  INQUIRY. 


The  composition,  objects,  and  duties  of  courts  of  inquiry  are 
next  to  be- considered  in  tlie  order  jiroposed. 

Sec.  104.     In  European  armies,  the  authorit}-  for  such  courts 
is  an  incident  to  preroi^ative  which  docs  not  exist  in 

Court  of  In-  ^  ^ 

yUMto^iT  ^^^^  countr}^.    They  are,  therefore,  expresslj*  provided 
''"''•  for  by  hiw.    The  Qlst  Article  of  war  directs  thai  they 

shall  consist  of  one  or  more  officers,  not  exceeding  three,  and 

a  Judge  Advocate,  or  liecorder,  to  reduce  tlicir  pro- 
rionof.  ceedings  and  evidence  to  writing;  all  of  whom,  it 
directs,  shall  be  sw^orn  to  the  faithful  performajice  of  their 
duty.  It  also  confers  on  the  court  power  to  summon  witnesses 
and  to  examine  them  on  ojUh.  They  are  directed  not  to  give 
their  opinion  on  the  merits  of  the  case  unless  speciall}^  required 
to  do  so.  The  accused  is  to  i>e  jterniilted  to  interrogate  and 
cross-examine  all  witnesses  ailduced,  so  as  to  investigate  fully 
the  circumstances  in  question. 

Skc.  105.  The  02d  Article  of  war  rrcpiircs  the  proceedings 
of  coui-ts  of  incjuir}-  to  be  authenticated  by  the  signatures 
of  the  Judge  Advocate  and  .})resident,  and  then  delivered  to 
the  commanding  officer.  '  These  proceedings  may  then  be  used 
in  evidence  before  a  court  martial  in  cases  not  capital,  and 
not  extending  to  the  dismission  of  an  officer,  ])rovided  oral 
testimony  cannot  be  obtained.      No  court  of  inquiry  can  be 

ordered   unless   by  direction  of  the  president,  or  at 

OrJjTcd    by  •'  ^ 

tiiopienidt.  ttjo  request  of  the  party  accused.     The  oaths  to  be 


COURTS    OF    INQUIRY.  81 

administered  to  the  court  and  |tho  Judijfe  Advocate  or  Recorder 
arc  prescribed  in  the  03d  Article  of  war.  The  witnesses  are 
to  take  the  same  oath  as  witnesses  sworn  before  a  court 
martial. 

Sec.  106.  It  thus  appears  that  the  composition  of  a  court  of 
inquiry  is  exceedingly  simple.  It  is  to  consist  of  not  more  than 
three  members,  and  a  Judge  Advocate  or  Recorder.  When  in- 
dispensable, an  interpreter  is  allowed. 

We  have  just  seen  that  the  President  only  can  direct  a  court 
of  inquiry,  unless  one  is  demanded  by  the  accused.    In 

Who  e\so 

the  latter  case,  the  court  maj^  be  convened  by  the  "'»>■  order, 
commander-in-chief  of  an  army,  or  an  officer  commanding  a 
military  department. 

Sec.  107.  Having  shown  how  the  court  of  inquir}-  may  be 
properly  convened,  we  are  next  to  consider  its  special 

Spocinl  ob- 

objects  and  duties.     As  the  term  imports,  this  court  is     J*^^*- 
chiefly  designed  as  a  means  of  investigation  and  inquiry.    It  is, 
therefore,  prcliminarj'  to  something  beyond,  as  upon  the  result 
here  depends  the  question  of  further  proceedings  before  a  court 
martial. 

Sec.  108.  This  court  is  so  far  a  judicial  body,  as  it  is  author- 
ized to  summon  witnesses,  and  to  examine  them  upon 

How  far  a  ju- 

oath.     lint  it  pronounces  no  sentence,  nor  should  it  '"f'an.ody. 
even  express  an  opinion  on  the  merits  of  the  case,  unless  ex- 
pressly so  required.     No  opinion  of  this  body  should 

Ocnprnl  oh- 

he  made  public,  and  the  members  are  precluded  from    J"^"- 
sitting  on  any  general  court  martial  growing  out  of  their  prb- 
ceodings  ait  a  court  of  inquiry. 

Sec.  109.     While  the  accused   has   an   obvious  right   to  be 
present  .at  an  examination  of  his  case  by  the  court, 
and  cannot,  on  the  other  hand,  disobey  a  numrn'ons  to    .iieJitfob- 

^  '  |.r<-wnt   at. 

appear,  he  is  at  the  same  time  at  lib<»rty  to  decline 
taking  any  part  in  the  proceedings,     liut  it  is  considered  better 
that  he  should  not  forego  tin'  ndvantage  of  an  opi>ortunity  thtis 
6 


82  JUDGE  advocate's  v.ade  mkcum. 

afforded   him    to  explain,   if  necessary,  any  doubtful   circum- 
stances in  his  case,  and  by  crnss-exaniininir  the  witnesses,  elicit 
whatever  might  otherwise,  through  inadvertence  or  neglect,  be 
omitted  in  their  testimonj'.     He  cannot,  however,  be  required 
to  make  any  statement  that  would  criminate  him;  and  hence 
is  not  obliged  to  respond  to  questions  of  such  a  tendency. 
Sec.  110.     Both  the  accused  and  accuser  are  entitled  to  coun- 
sel before  a  court  of  inquiry'.     Nor  can  there  be  any 
reasonable  objection  to  this,  for  the  reason  that  such 
assistance  may  aid  materially  in  the  chief  ohject  of  the  exami- 
nation, which  is  to  determine  whelhcr  there  is  just  ground  for 
a  trial. 

Sec.  111.     It  is  usual  for  courts  of  inquiry  to  sit  witli  closed 
doors.      But   this,    unless   otherwise    tlecided    bv    the 

Sit  with 

cioaeddoors.  authoHty  convening  the  court,  is  a  matter  of  discre- 
tion with  them,  in  which  the}'  should  he  governed  by  the  cir- 
cumstances of  each  case.  Wliere  the  subject  of  inquiry  is  of 
such  a  nature  as  to  render  its  publicity  improper  or  inexpe- 
dient, the  court  should,  of  course,  bo  closed.  Their 
special  dut}^  in  either  case,  as  defined  by  the  Article 
of  war  already  cited,  is  "  to  examine  into  the  nature  of  any 
transaction,  accusation,  or  imputation  against  any  officer  or  sol- 
dier." Tiie  objects  for  wiiieh  the  court  is  eonvened  should  bo 
set  forth  in  the  order,  with  particular  instructions  requiring  a 
report*  of  facts  ascertained,  or  an  opinion  upon  the  merits,  as 
may  b0  deemed  best.  By  stich  order  and  instructions  tho  court 
is 'always  to  direct  and  limit  its  proceedings,  and  in  no  case  are 
they  competent  to  depart  from  th6m. 

i^EC.  ll'i.     The  mode  of  proceeding  .is  to  bo  (determined  by 
the   court.        When    this    is   done,    the    complainant 

.Modo  of  pri>-  , 

recdiiiss  de-  ,^J^^[    accused   are   called    in.    and    the    subject   to    be 

tei'iiiliiu^  by  _       *' 

.court.      ^    examined   is   tlien   gtated    by   tjie   Judge   Advocate. 

Tho  right  of  challenge  is  allowed,  for  cause,  to  either  party, 

and  this  Ibi-  the  reason  that  the  investigation,  whether 

forcBiiMc.       accompanied  by  an  ojiinion  of  the  court  or  not.  may 


COURTS    OF    INQUIRY.  88 

in  some  way  affect  the  reputation  of  the  party  accused,  or  the 
public  interest;  and  as  the  right  is  to  be  exei'ciscd  subject  to 
the  discretion  of  the  court,  there  is  little  danger  of  its  abuse. 

Sec.  113.     Trials  before  courts  martial  arc  limited   by  the 
75th  Article  of  war  as  to  time,  between  the  hours  of 

Time  for 

eight  in  the  morning  and  three  in  the  afternoon  ;  but        «'tting. 
there  is  no  such  restriction  upon  the  proceedings  of  courts  of 
inquiry. 

There  is  no  provision  made  for  furnishing  copies  of  the  pro- 
ceedings, or  any  documents  connjected  with  them,  to 

Copieo  of 

the  accused,  as  in  courts  martial;   nor  can  they  be       record. 
rightfully  demanded,  inasmuch  as  the  inquiry  is  preliminary 
only,  and  designed  exclusively  for  the  information  of  the  au- 
thority by  which  it  was  instituted. 

Sec.   114.    An  officer  accused  before  a  court  of  inquiry  is  not 
under  arrest,  except  there  exists  a  necessity  therefor,      ^hen  ao- 

-,-  y  •»  •  1      /»  n       '■UHed  id  ia 

But  contempts  from  mihtary  persons  before  a  court  of     arre«t. 
inquiry  may  be  punished  as  if  committed  before  a  court  mar- 
tial.    For  such  an  offence  the  court  may  direct  the  ar- 

ContenipM 

rest  of  an  officer,  and  confinement  of  a  soldier.  The  ''*'""• 
provisions  of  the  76th  Article  of  war,  guarding  the  dignity 
of  courts  martial,  do  not  appear  to  have  been  extended  to 
courts  of  inquiry  in  terms,  and  the  power  thus  conferred 
could  not,  perhaps,  be  exercised  by  the  latter.  Hence  it  seems 
that, .conceding  the*  right  of  courts  maftial  under  that  Article. 
t<^  punish  Cftntompt's  committed  by  citizens  or  persons  not  sub- 
ject to  military  law.  no  such  authority  could  be  claimed  by  a 
court  of  inquiry,  whose  only  remedy  in'such  cases  would  be  an 
M|i]teal  to,  the  eivil  tribunals,  and,  in  the  meantime,  the  exjmi- 
sion  of  the  offcriding  parly  from  the  presence  of  the  court. 

SRr.  115.     As  already  observed,  a  court  of  inquiry  is  ncit 
sworn  to  socrecj';  but  it  would  be  regarded  as  a  gross 
breach  of  military  doforum  should  any  member  di-       «.-t  \^\' 

dirmlgod. 

vntgc  the  opinion  of  the  court  prior  to  its  being  offi- 
ciallv  announced.  .  .  "  • 


84  JUDGE  advocate's  vade  mecum. 

Sec.  11(3.     This  court  may  be  reassembled  whenever  neces- 
sarv,  tlie  witnesses  recalled,  and  new  questions  put 

May  be  re-  -^  '  . 

assembled,     ^q  them  with  a  view  of  eliciting  every  fact  connected 

with  the  subject  of  inquiry.     Their  proceedings  may,  moreover. 

be  revised  as  often  as  requisite,  in  which  respect  the 

Revision  of  .  .  ,1.11 

their  pro-     practicc,  II  not  the  law  ot  the  service,  has  established 

ceedings. 

a  difference  between  them  and  courts  martial. 
Sec.  117.     The  ^8th  Article  of  war  is  the  military  statute  of 
limitations.      It   prohibits  trial   by  a   general    court 

Stntlltc     of  .      ,       n  rt>  -1  1 

liiiiitntioiis     martial   for  any  otience  committed   more   tlian   two 

Applies. 

years  before  the  issuing  of  the  order  directing  its 
trial,  except  in  certain  specified  cases.  This  prohibition  rests 
on  the  same  broad  •]^)rinciple  which  underlies  ail  similar  restric- 
tions— that  of  preventing  vexatious  accusations  and  stale  de- 
mands, which,  from  lapse  of  time  and  loss  of  evidence,  it  might 
prove  impossible  either  to  refute  or  defend.  And  thus  the 
spirit  of  this  law  as  certainly  applies  to  investigations  before 
courts  of  inquiry  as  to  any  other  j  and  though  they  are  not 
named  in  the  article  referred  to,  yet,  when  it  is  remembered 
>  that  the  object  of  all  investigations  before  courts  of  inquiry, 
especially  when  not  instituted  at  the  request  of  the  accused, 
is  to  ascertain  if  there  exists  a  necessity  for  the  trial  of  the 
offender,  there  can  be  little  doubt  as  to  the  propriet}^  of  ex- 
tending this  prohibition  to  them.  This  may  now  be  consid- 
ered the  better  opinion,  although  some  military  writers*  ap- 
pear to  think  dilforently.  ,  • 

By  Act  bf  Congress,  approved  April  21,  1862,  it  is  provided, 
Actiopiinish  that  any  comjnissioned  officer  convicted  of  drunken- 
'  nese  before  a  Court  of  Inquiry  shall  be  cashiered,  or 
suspended,  or  publicly  reprimanded. 

Under  this  act  the  court  are  only  to  collect  the  evidence, 
and  report  the  facts,  with  their  ^^ findings"  to  the  Secretary  of 

*  McrComb  and  O'Brien. 


COURTS   OF   INQUIRY.  85 

War,  and  are  not  to  pronounce  any  sentence  in  the  case.     This 
belongs  to  higher  authority. 

Sec.  118.  •  It  is  not  necessary  to  publish  the  proceedings  of 
a  court  of  inquirj-,  althougli  justice  to  the  accused,   Proceedings 
and  the  pubhc  interest  may  sometimes  require  this  to   iiniiod. 
be  done.     The  court  is  dissolved  by  the  same  authority  which 
convened  it. 


Chapter  V 


OF  COURTS   MARTIAL. 


We  come  at  length,  in  the  coursQ  of  our  inquiries,  to  the  sub- 
ject of  courts  martial,  and  are  to  examine  as  was  proposed : 

1.  Their  particular  organization,  as  divided  into  general,  regi- 
mental, and  garrison  courts. 

2.  Their  particular  jurisdiction. 

3.  Their  general  powers  and  duties,  and  the  punishments 
they  may  respectively  impose. 

Sec.  119.     The  power  to  appoint  courts  martial  is  derived 

directly  from  the  act  of  Congress,  approved  March  6, 

poinrco°uX   18G1,  establishing  a  code,  or  "Eules  and  Articles  for 

martial. 

the  government  of  the  Confederate  States.  In  tins 
law  the  peculiar  composition  of  these  courts,  and  the  persons 
hy  whom  the  power  of  appointment  is  to  be  exercised,  are 
definitely  prescribed  and  limited.  By  the  G5th  Article  of  that 
code,  any  general  oflScer  commanding  an  arm}',  or  colonel  com- 
nianding  a  separate  department,  may,  when  necessary,  appoint 
a  general  court  martial. 

An  act  of  the  United  States  Congress,  the  provisions  of  which 
are  operative  here,  passed  in  1830,  provides  that  if  such  com- 
manding officer  or  colonel  shall  bo  the  accuser  or  jn'osecutor 
of  any  officer  of  the  army  commanded  by  him,  the  court  for  his 
trial  shall  be  appointed  by  the  President.  But  independently 
of  any  such  provision,  the  President,  as  the  commander-in-chief 


OF    COURTS    MAliTIAL.  87 

of  tlic  arm^-,  is  rx  officio  competent  to  order  courts  martial 
whenever  they  prove  necessar}-.* 

Sec.  120.  Under  the  terms  of  the  64th  Article  of  war,  gen- 
eral courts  martial  are  to  consist  of  any  number  of 

Compofii- 

commissioncd  ofKcers,  from  five  to  thirteen  inclusive-  *'""  "'^■ 
ly ;  hut  cannot  consist  of  less  than  thirteen,  when  that  number 
can  he  convened  without  manifest  injury  to  the  service.  Where 
the  maximum  number  cannot  be  obtained  without  such  injur}-, 
the  order  assembling  the  court  should  state  that  fact.  The 
time  and  place  for  the  meeting  of  the  court  should  also  be 
designated  in  the  order. 

The  members  detailed  take  j)lace  in  the  court  according  to 
their  rank,  and  no  decision  b}'  the  proper  authority  on  a  ques- 
tion of  rank  can  be  overruled  by  the  court.  No  president  is 
formall}-  appointed;  but  the  officer  having  the  highest  rank  in 
the  court  is  president.! 

Sec.  121.  The  same  law  authorizes  evcrj-  officer  command- 
ing a  regiment,  or  corps,  to  appoint  courts  martial 
therefor,  to  consist  of  three  commissioned  officers,  for  <=""'**• 
the  trial  and  punishment  of  offences  not  capital.  For  the  same 
purpose,  officers  commanding  garrisons,  forts,  barracks,  or  other 
places  where  troops  consist  of  different  corps,  may  assemble 
courts  martial  of  three  commissioned  officers,  and  decide  ui)on 
their  sentence8.;|:  The  authority  thus  conferred  cannot  be  dele- 
gated, but  is  to  be  exercised  only  bj-  parties  designated  in  the 
law.  Hence  the  order  directing  the  convening  of  any  court 
should  issue  immediately  from  the  officer  upon  whom  such 
power  has  been  bostowed.§  A  consequence  of  this  law  is  that 
when  an  army  is  assembled  in  a  bod}-  none  but  the  command- 
ing officer,  who  is  to  be  also  a  general  officer,  can  order  a  gen- 
eral court  martial ;  and  in  militar}-  departments  tiiis  privilege 


•  Ik  Hart.  %  Anny  ReitulaUcin^. 

t  6Uh  Article  of  War,  act  of  March  6,  n(>\.  'i  I>e  Hart,  6. 


88  JUDOE  advocate's  vade  mecum. 

is  limited  to  the  commanding  officer,  having  at  least  the  rank 
of  colonel. 

Sec.  122.     It  thus  appears  that  the  only  judicial  tribunals  in 
the  military  system  arc  the  general,  regimentnL  and 

What  mili- 
tary courts     garrison  courts  martial,  before  referred  to.     Of  these, 

allowfil. 

the  general  courl  nKirtial  is  the  highest,  aiid,  as  al- 
ready- observed,  can  only  be  appointed  by  the  President,  or 
general  officer  commanding  an  army,  or  a  colonel  commanding 
a  militar}' department;  while  regimental  courts  may  be  ordered 
by  the  commanding  officer  of  a  regiment,  and  garrison  courts 
by  the  commanding  officer  of  a  barrack,  fort,  etc. — the  two  last 
having  onl}'  a  limited  and  inferior  jurisdiction. 

Sec.  128.     A  court  martial  of  full  jurisdiction  cannot  consist 

of  less  than  five  members.     But  sometimes  more  than 

Minimum 

mumnmn-  ^^^^  maximuni  numbej-,  thirteen,  are  detailed,  the  ex- 
*"'■  cess  being  counted  as  svpcrnuvieraries.  who  sit  with 

the  coui't,  but  take  no  part  in  its  proceedings,  except  by  dis- 
cussion, as  the}'  have  no  voice  in  any  sentence  pro- 

Supernumer-  . 

aries,  object  nouuccd,    and    no   vote   as    to   anv   question    to   be 

of. 

decided.*  Such  supei-nuinei-aries  are,  indeed,  detailed 
only  in  imjjortant  casts,  to  prevent  delay  from  vacancies  which 
might  occur  through  sickness,  death,  or  other  cause. 

Sec.  121.   There  is  a  class  of  officers  who,  although  regularly 

commissioned  (such  as  surgeons,  (luartermasters,  etc.), 

WliBtofflcerH  ^  t^  '    1  >  /} 

not  to  ^it  an  j^j.g  j,y^  considcrcd  as  having  militarv  rank,  and  who, 
•^o"""*-  while  they  may  be  emploj-ed  in  the  capacity  of  Jvdge 

Advocate  to  a  court,  cannot  be  detaiUd  as  members.  The  same 
has  been  determined  as  to  chaplains,  who,  as  such,  indeed,  have 
no  military  rank.f  It  is  held,  however,  that  a  cadet  brevetted 
Cadet  may     to  a  licutcnancy  is  a  commissioned  officer,  having  the 

be  (h-tuilcd 

a»  gucii.  lowest  lank-,  anil  may,  tln-relore,  on  necessary  and 
suitable  occasions,  be  detailed  as  a  member  of  a  court. | 


♦O'Brien's  Mil.  Law.  t  O'Brien,  227.  J  De  Hart,  41,  42. 


OP   COURTS    MARTIAL.  89 

Sec.  125.  The  direction  in  the  Articles  of  war  that  a  court 
martial  shall  not  consist  of  less  than  ihirtccn  memhers,  when 
tliat  nunihcr  can  be  convened  without  injury  to  the  service, 
is  addressed  to  the  officer  convening  the  court,  and  his  dcK-ision 
of  the  question  whether  that  nunil)er  can  be  convened  without 
such  injury  is  conclusive.  This  point  was  so  determined  by 
the  United  States  Sujireme  court,*  and  is  now  settled  b}'  the 
army  rej^ulations  to  the  same  etfect. 

Sec.  126.  The  Articles  of  war  provide  that  general  ccmrts 
martial  are  to  be  composed  of  commissioned  officers, 

^  Rank  of 

without  prescribing  the  particular  rank  in  any  case.  "ffirere. 
This  question  is,  therefore,  left  to  the  discretion  of  the  appoint- 
ing power,  in  determining  which  he  can  only  be  guided  by  the 
rank  of  the  party  accused,  and  the  importance  of  the  sulyects 
to  be  decided  by  the  court. f  As  already'  observed,  no  presi- 
dent is  formally  appointed,  the  senior  member  present  being 
entitled  to  that  position,  so  long  as  the  court  does  not  fall 
below  the  minimum  number  of  five.  And  while  the  court  can 
be  kept  up  to  this  number  it  is  competent  to  transact  the 
business  before  it. 

Sec  127.  By  the  68th  Article  of  war,  it  is  provitltd  that, 
when  necessary  or  convenient.  officcT's  of  the  marine 

M.irin* 

corps  may  be  as.sociated  with  those  of  the  land  forces  ^"t^*- 

in  courts  martial  for  trying  offenders  belonging  to  either;  and 
in  such  cases  the  orders  of  the  senior  officer  of  either  corps 
present  and  duly  authorized  shall  be  obe3'ed.  Such  is  not  the 
case,  however,  with  the  militia;  for  although  the  07th  Article 
of  war  suVyects  the  militia,  when  mustered  into  the 

„\  ,  t        T^    1  ,  Militia. 

service  of  the  genfral  government,  to  the  Kules  an(l 
Articles  of  war,  and  renders  them  liable  to  be  tried  by  courts 
martial,  it  at  the  same  time  requires  »uoh  courts  to  be  com- 
posed entirely  of  militia  officers. 


•112Whe»t<.n,  .'JS.  f  I>«  Hart,  46.  47. 


90  JUDGE  advocate's  vadk  mecum. 

Keforriiii;  to  tliis  jn-ovision,  Do  Hart  remarks:  "It  would 
appear  but  just  that  this  rule  should  be  reciprocal;  for  if  the 
militia  are  not  to  be  subjected  to  the  judijmcnt  of  officers  of  the 
regular  service,  it  is  very  inconsistent  to  measure  the  opinions 
and  acts  of  the  latter  by  the  judgment  of  the  former.  The 
reason  of  the  law  would,  undoubtedly,  exclude  militia  officers 
from  a  court  convened  lor  the  trial  of  persons  belonging  to  the 
regular  service."* 

Sec.  128.  The  court  having  been  assembled,  the  names  of 
the    members    and    .ludgc   Advocate  duly  registered 

Org.-\n!Kati»ii 

of  conn  when  according  to  rank,  seniority,  etc.,  the  challenge,  or 

compli'tc.  • 

opportunity  therefor  presented,  and  the  members  and 
■Judge  Advocate  all  sworn  according  to  the  prescribed  forms, 
their  organization  is  complete. 

Sec.  129.  II. — We  are  now  to  examine  the  particular  juris- 
diction of  courts  martial,  and  herein, 

1.  Of  Genoi-al  Courts  Martial  : 

We  iiave  heretofore  adverted  to  some  of  the  principal  rules 
which  appertain  to  military  jurisprudence  generally,  but  it  will 
be  necessary  to  refer  to  them  more  particularly  in  the  course  of 
the  present  chapter 

Until  Congress  shall  see  fit  to  confer  eillu'r  apiirllalo  or  c(»n- 
current  jui-isdiction  upon  the  civil  courts  in  military  matters, 
the  better  opinion  is  that  the  jurisdiction  of  the  military  tribu- 
nals is  exclusive,  and  can  in  no  way  be  interllM'e(l  with  by  the 
civil  authority.* 

The  (ioth  Article  of  war,  which  authorizes  the  a|t])'»in(ment 
Extent  ..f  *>^  general  courts  martial,  ap})lies  no  limit  to  their  ju- 
risdiction. It  is,  thei-efore,  claimed,  and  generally  ad- 
mitted, that  as  they  are  courts  of  the  highest  authority,  they 
may  lake  cognizance  of  any  military  offence  whatever.  But, 
although  they  have  conferred  upon  them  this  jurisdiction,  they 


De  Hart,  45.  f  I  Kent,  341,  note. 


OF    COURTS    MARTIAL.  91 

are  yet,  in  all  cases  which  are  cognizable  bj-  the  inferior  courts, 
restricted  by  neccssar}-  implication  to  the  punishments  ])re- 
scribed  to  the  latter;  were  it  otherwise,  "the  security  pro- 
posed for  offenders  against  the  higher  degrees  of  military 
punishments,  by  confiding  their  cases  to  the  cognizance  of  an 
inferior  court,"  would  l)c  wholly  defeated.  It  is  true  the  37th 
and  47th  Articles  of  war  refer  to  punishments  to  be  inflicted  at 
the  "  discretion  of  a  regimental  court;"  and  hence  a  doubt  has 
been  expressed  whether  in  such  cases  authority  can  be  exer- 
cised by  other  courts.  But,  as  the  terms  of  the  law  respecting 
general  courts  martial  are  very  broad,  and  do  in  no  wa}'  con- 
fine their  Jurisdiction,  the  limitation  of  the  37th  and  47th 'Arti- 
cles may  be  construed  with  reference  to  the  particular  punish- 
ments referred  to,  and  not  to  the  tribunal  bj'  which  they  are  to 
be  pronounced — that  is,  as  already  suggested,  the  general,  or 
court  of  larger  jurisdiction,  can  inflict  no  greater  degree  of 
punishment  than  the  court  of  inferior  jurisdiction.  Moreover, 
there  are  "violations  of  duty  which  a  soldier  might  be  guilty 
of  which  do  not  amount  to  capital  crimes,  and  yd,  consid- 
ering the  circumstances  under  which  the  act  is  perpetrated, 
and  the  consequences  flowing  from  it,  demand  more  serious 
consideration  or  severer  chastisement  than  a  minor  court  could 
give.  It  is  true,  a  knowledge  of  the  circumstances  attending 
the  off'ence  ought,  in  most  instances,  to  determine  the  tribunal 
to  which  the  case  should  be  referred  for  trial.  But  as  such 
may  not  be  known  to  the  appointing  authoritj",  or  not  suc- 
cinctly enough  set  forth  in  the  charges,  such  a  rule  cannot 
always  apply,  and  therefore  it  becomes  necessary  that  a  more 
definite  course  should  bo  determined.  An  off'ence,  for  instance, 
like  that  specified  in  the  45th  Article  of  war,  illustrates  what 
is  here  intended — of  so  heinous  and  dangerous  a  nature  is  it, 
that  a  coramissioned  officer  convicted  of  the  same  is  ipso  facto 
cashiered  ;  and  yo\  the  same  act  in  a  non-commissioned  officer 
or  scjldier  is  left  to  the  discretion  of  the  court  how  to  punish. 


92  JUDGE  advocate's  vade  mecum. 

If,  then,  the  crime  sliould  be  submitted  for  investigation  to  a 
regimental,  or  garrison  court  martial,  how  disproportionate, 
when  compared  to  the  penalty  declared  against  an  officer, 
would  the  sanction  be.  For  such  cases,  and  when  the  power 
to  punish  in  the  court  is  a  discretionary  one,  as  the  above  quot- 
ed Article  of  war  exemplifies,  it  would  a]tpear  necessarv  that 
a  general  court  martial  sliould  have  ])roper  cognizance  there- 
of"* 

Sec.  130.    It  is  usual,  however,  and  better,  that  offences  of  an 

inferior  nature  should  be  disposed  of  b}-  the  minor  tribunals, 

when  it  can  be  conveniently  done.     And  in  determining  what 

particular  jurisdiction  should  attach  in  <;iven  cases,  it 

How  to  do-       ^  ''  .-^  ' 

termine.  ^^i]\  \jq  couveniciit  to  rccur  to  three  distinct  })articu- 
lars:  Ist,  the  punishment  to  be  pronounced;  2d,  llie  jierson 
by  whom;  and  3d,  the  offence  for  which  such  ])unishment  is 
inflicted.  Now,  by  the  Article  of  war,  neither  a  regimental 
nor  garrison  court  can  take  cognizance  of  capital  cases,  or 
of  any  matter  appertaining  to  a  commissioned  officer.  Here 
reference  to  the  pun ishjnent  and  tho  person  decides  the  fact  that 
in  such  cases  a  general  court  martial  has  exclusive  jurisdiction. 
The  Articles  of  war  also  provide  that  the  minor  courts  shall 
not  inflict  fines  exceeding  one  month's  pay,  nor  imprison  nor 
put  to  hard  labor  any  non-commissioned  oflicer  or  soldier  for  a 
longer  period  than  one  month;  so  that,  where  their  offence  is 
such  as  to"  require  a  great(^'  degree  of  punishment  than  is  iiero 
specified,  the  trial  must  bo  before  a  general  court  martial  ;  but 
where  less,  or  only  equal,  the  inferior  court  may  take  cogni- 
zance of  the  case. 

Instances  in  which  the  particular  offence  alone  is  to  bo  re- 
garded in  determining  the  jurisdiction,  may  bo  found  in  the 
20th  and  45th  Articles  of  war;  the  first  denouncing  against  the 
crimes  specified   the   ])unishment   of  death;    and    the    second 


»DeHart,  60,  51. 


OF    COURTS    MARTIAL.  93 

that  of  cashiering,  or  such  other  punishment  as  the  court  may 
select.  Here  we  see  that,  if  the  offence  requires  the  punish- 
ment of  death,  or  cashiering,  as  the  inferior  courts  are  excluded 
in  such  cases,  the  general  court  martial  only  can  act;  but  if,  on 
the  other  hand,  the  offence  is  trivial,  and  merits  but  a  low 
degree  of  punishment,  the  regimental,  or  garrison  court  is 
authorized  to  try  the  case. 

Sec.  131.  I)e  Hart  deduces  the  following  as  the  several 
classes  of  crimes  exclusively  within  the  jurisdiction  of  general 
courts  martial  : 

1.  Those  which  are  expressly  committed  to  their  juris- 
diction. ^^^ 

2.  Those  against  which  particular  penalties  are  dc-    subj"t""^ 

,  ,         .  n     \  •  jurisiliction 

nounced,  exceeding  the  authority  oi  the  minor  courts    of  general 

court"  mar- 
to  inflict.  »'«•• 

3.  Those  which,  from  the  nature  of  the  crime  committed, 
demand  severe  punishment  beyond  the  power  of  the  inferior 
courts  to  order. 

4.  Those  which  offend  against  the  principles  of  good  order 
and  military  discipline,  and  though  subject  to  trial  before  the 
minor  courts,  may  yet  require,  for  speedy  punishment  and  con- 
viction, to  be  investigated  by   a  general   court  martial. 

He  then  presents  a  summary  of  the  various  offences,  desig- 
nating them  b}'  name,  which  are  by  law  made  cognizable  by  a 
general  court  martial  only,  as  follows,  viz: 

"beginning,  CKciting,  causing,  or  joining  in  any  mntiny. 
Article  7.     *  * 

"Knowing  of,  and  not  informing  of  any  intended  mutiny, 
and  not  endeavoring  to'  suppress  it.  •  Article  8. 

."Striking,  dr  drawing,  or  lifting  any  weapon,  or  offering 
violence  against  a  superior  officer  in  the  discharge  of  his  cfuty. 
Article  0. 

"  Desertion."   Article  21. 

"  Persuading  to*  desert.     Article  23. 


94  JUDGE  advocate's  vade  mecum. 

"  Enlisting  in  any  other  rcLrinicnt.  etc.  lu'fore  being  regularly 
discharged.     Article  22. 

"  nisobedienco.  or  drawing  a  sword  iii)on  any  inferior  officer 
in  (juarrels  or  frays.     Article  27. 

"Selling,  lo^sing,  or  spoiling,  through  neglect,  lior.ses,  arin.s.  or 
accoutrements.     Article  38. 

•*  Sentinel  sleeping  on  post.     Article  46. 

"  Violence  to  persons  bringing  provisions  or  necessaries  to 
camp,  etc.     Article  51. 

"Misbehaving  before  the  enemy,  abandoning  j)ost,  throwing 
away  arms,  (|uitting  colors  to  jiluiuier.     Article  i)'2. 

"  Making  known  watchword,  or  giving  a  different  watchword 
from  that  deceived.     Article  53. 

"  Forcing  a  safeguard,  etc.     Article  .■)">. 

"  iloiic'viiig,  harboring,  and  protecting  tiie  cnem3^    Article  56. 

"  Holding  correspondence  with,  or  giving  intelligence  to  the 
enemy.     Article  57. 

"  Compelling  a  conitnander  to  surrender.     Article  50. 

"  Spies,  etc.  Article  59,  section  2.  And  all  other  cases  in 
which  a  commissioned  officer  is  to  be  tried." 

"All  such  cases,"  he  adds,  "as  have  been  referred  to,  coming 
under  the  3Sih  and  45th  Articles  of  war,  and  any  others  of 
similar  desci'iption,  should,  for  uniCorniity  of  I'ule  and  substan- 
tial JusticCj  be  made  subject  to  trial  by  a  general  court  mar- 
tial." 

Si;('.  l;)2'.      llt'terring.  to  the  fact   that   gcncinil  courts  martial 

may  exercise  jurisdiction  oveV  every  species  of  offence  which 

is  named  in  Articles  of  wai',  the  same  author  observes:*    "  ll 

bcc(jmes  necessnry  that  such  courts  should  discrimi- 

<'oiirt»  to  tlis-  *  .  .11*1  1      • 

rriiiiiimto  b.'- nate    between    crimes   conhned   exclusively    to    tiioir 

iwcfiirrinicB. ' 

jurisdiction,  and  such  others  as  might  be  tried  by  an 
infcrioi-  court,  so  far  as  their  own  discretion  to  award  punish- 
ment may  bo  affected."     In  those  cases  in  which,  by  the  Arti- 

*  Page  04. 


OF    COURTS    MARTIAL.  95 

clcs,*  *'a  jurisdiction  is  saved  to  the  regimental  court,  it  would 
appear  as  a  just  interpretation  of  tlie  law  tliat  the  punishment 
for  sucli  was  intended  to  be  limited  aceoi-ding  to  the  competen- 
cy of  a  retjimental  court  to  award  it,  and  therefore  a  general 
court  martial,  when  considering  such  cases,  should  not  vaiy  in 
kind,  nor  exceed  in  degree,  the  punishment  which  the  inferior 
court  could  decree.  This  rule  is  not  oidy  just  in  the  abstract, 
but,  considering  the  trial  as  a  criminal  proceeding  for  the  in- 
fliction of  punishment,  it  is  of  legal  obligation, "f  and  should 
therefore  be  obe3-ed.  The  evidence  adduced  enables  the  meni- 
bers  to  determine  whether  the  subject  could  have  been  dis- 
]>08ed  of  by  an  inferior  court,  and  to  shape  its  sentence  accord- 
ingly. 

Sec.  133.  The  language  of  some  of  the  Articles  of  war  is 
very  indefinite,  and  leaves  it  doubtful  as  to  the  partic- 
ular courts  to  wiiich  the  jurisdiction  of  certain  cases  d'mi.ifni i«n- 
is  intended  to  be  confided.  Where  such  doubtful 
terms  are  emploj-ed,  the  only  safe  rule  is  to  consider  the  several 
Articles  bearing  in  an}'  manner  upon  the  same  subject,  so  as  to 
gather,  as  far  as  practicable,  tjieir  true  meaning  and  intent. 
If  two  meanings  apparently  attach  to  a  particular  Article,  and 
yet  one  of  them  is  opposed  to  the  manifest  construction  of 
another  Article,  it  is  obvious  that  the  inconsistency  should  be 
avoided  by  adopting  that  meaning  in  the  doubtful  Article  which 
tends  to  harmonize  the  whole.  Thus,  for  example,  the  38th 
Article  provides  for  the  punishment,  by  a  court  martial,  of  cer- 
tain oflPenccs  committed  by  non-commissioned  ofllicers,  and'sol- 
'  dicrx,  by  weekly  Stoppages  of  their  pa^,  not  exceediog  half  pay, 
as  such  court  martial  shall  judge  sufficient  for  re]>airing  the  loss 
or  damage;  and  by  confinement,  etc.,  ri*  thr  crime  may  'fr,$.erve. 
But  what  court  is  here  intended  ?  A  regimental  court  maj'  try 
the  parties  specified,  and  may  likcwiftc  inflict  punishments  of 


•  .ITlb  and  4Tth  Articlee..  f  Pigc*  6l.  65. 


96  JUDGE  advocate's  vade  mecum. 

the  nature  designated:  and  yet  a  -'loss  or  damage"  is  to  be  re- 
paired Avliich  it  may  be  difficult,  perhaps  impossible,  for  any 
inferior  court  to  have  done  by  "weekly  stoppages"  of  the 
offender's  "  half  pay,"  inasmuch  as  the  07 th  Article  of  war 
declares  that  no  regimental  or  garrison  court  shall  inflict  a  fine 
exceeding  one  month's  pay.  Here  it  appears  that  tlie  con- 
struction to  which  the  38th  Article  is  liable,  whereby  regi- 
mental and  garrison,  as  well  as  general  courts,  might  claim 
jurisdiction  in  some  cases,  is  controlled  b}'^  the  GTth  Article, 
which  expressly  limits  the  action  of  the  inferior  courts  to  those 
cases  only  which  do  not  require  a  fine  exceeding  one  month's 
"pay,  and  remits  such  cases  as  require  a  greater  degree  of  pun- 
ishment to  the  cognizance  of  a  general  court  martial. 

Sec.  134.     But  apart  from  the  express  directions  of  the  law, 

and  those  obvious  considerations  of  a  public  and  pro- 

Kponsitiii-     fessional  nature  which  should  limit  and  control  every 

ty  of  court. 

court  in  the  discharge  of  its  duty,  there  are  others  of 
a  private  character  not  to  be  overlooked,  inasmuch  as  each 
member  "is  responsible  in  the  civil  courts,  not  only  for  any 
abuse  of  power,  but  for  any  illegal  proceedings  of  the  court,  if 
he  has  voted  lor  or  participated  "  in  them.  And  a  case  is  re- 
ported in  England  of  a  mariue  who  recovered  one  thousand 
pounds  damages  against  the  president  of  a  court  martial  wliieh 
had  convicted  him  on  illegal  evidence,  and  the  Judge  informed 
him  that  he  was  at  liberty  to  bring  an  action  against  any  other 
members  of  the  court.*  Perhaps  this  latter  part  of  the  decis- 
ion would  not  now  be  sustained;  but  should  a  court  mai-tial  in 
any  case  exceed  its  jurisdiction,  or  pronounce  sentence  where 
it  had  no  jurisdiction,  a  claim  for  damages  might  arise,  to  be 
settled  by  the  civil  authorities. 

Sec.  135.     It  should  be  remembered,  in  this  connection,  that 
the  88th  Article  of    war  prohibits  trial   by  general 

statute  of 

limitations.    gQurts  martial  for  any  ofltence  committed  two  years 


O'Bricu,  222,  223. 


OF    COURTS    MARTIAL.  97 

beyond  the  date  of  the  order  for  such  trial;  exccptinfi;,  how- 
ever, those  cases  in  which  certain  impediments,  recognized  in 
the  Article,  are  sliown  to  have  existed  to  the  trial. 

Sec.  130.     When  the  authority  of  courts  martial  is  extended 
by  the  Executive,  bj-  proclamation  or  otherwise,  to 
certain  departments  or  districts  of  country,  by  the   to"jiiris<iic- 

tion    whero 

establishment  of   martial   law,  the   court   should   be  martiniiaw 

existi*. 

satisfied,  before  taking  cognizance  of  an}-  case,  that 
it  is  embraced  in  the  purview  of  the  order  and  of  their  juris- 
diction, otherwise  their  proceedings  might  prove  to  be  illegal 
and  void.* 

Sec.  I'M.     In  concluding  this  head,  it  may  be  observed  that 
all  violations  of  the  Articles  of  war  should  be  tried 


and  punished  as  such,  no  matter  before  what  court  "^  Articles 

as  such 


Violations 
of  Article 
of  war  tried 

the  charges  are  brought;  nor  can  the  objection  that 
they  are  not  so  charged  be  obviated  by  changing  the  form  of 
tlie  charge,  and  "classing  (he  offence  under  the  denomination 
of  disorders  and  neglects,  to  the  prejudice  of  good  order  and 
military  iliscipline."f 

Sec.  13H.     2.  Of  the  Jurisdiction  of  Garrison  and  Regimen- 
tal Courts: 

These  inferior  courts  are  designed  for  the  trial  and  punish- 
ment (;f  minor  offences.     They  are  essential  to  the 

,,..,.  „     ,  .  .   ,  Design  o(. 

success  and  discipline  of  the  service,  as  without  them 
many  wrongs  and  delinquencies  would  go  unredressed,  whero 
from  circumstances  the  requisite  numl>er  of  officers  for  the 
regular  court  martial  could  not  be  procured,  which  is  fre- 
quently the  case  on  marches,  on  detached  service,  or  at  distant 
posts. 

Their  jurisdiction.];  as  before  noticed,  is  very  circumscribed, 
and  cannot  extend  to  capital  cases,  nor  to  comrais- 

*  .liiritdictjon 

sioned  officers.     This  is  expressly  prohibited  by  the   ''"''*^- 
<>7th   Article  of  war.  which  also  forbids  their  infliftini;  a  fine 


•  O'Bnen,  228.  f  IH  Hut,  61.  X  ^^  '*'=••  ^^^f  I'l- 

7 


98  JUPOK    ADVOrATK's    VADE    MF.CUM. 

exefO(lin<j;  one  Tnoiith's  pay,  or  the  imprisonment  or  jiuttinir  to 
liard  labor  any  non-commissioned  officer  or  soldier  for  a  lonj^er 
period  tluin  one  montli.  Tlie  offences  niinu'd  in  tlie  MTtli  aiul 
47th  Articles  of  war  may  be  tried  more  properly  by  a  rci^i- 
mental  court,  as  it  is  expressly  named  ;  l>ut  it  has  been  shown 
that  its  jurisdiction  is  concurrent  with  that  of  the  general 
coui't  martial,  and  not  exclusive.  The  same  remark  is  a])plica- 
ble  to  the  85th  Article  of  war.  which  confers  on  a  regimental 
court  the  power  to  examine  complaints  of  soldiers  against  their 
officers.  It  is  usual  and  most  proper  that  this  examination 
should  be  made  by  the  regimental  court;  Imt  there  ap])eai"S  no 
good  reason  why  the  higher  court  should  not  act  evi'U  in  such 
a  case,  if  circumstances  render  it  necessary. 

Sec.  139.  The  general  rule  as  to  regimental  and  gai-risun 
General        courts  may  bc  stated  in  a  lew  words.     They  jiossess 

rule  08  to.  .....  11         ^  1  •        •  t        n 

jurisdiction  over  all  oiiences  by  non-commissioned  oi- 
ficcrs  and  soldiers  "  which  infract  the  ordinary  proprieties  of 
military  service,  as  irregularities  and  disorders  which  are  not 
of  a  grave  and  serious  description,  beside  such  specific  offen- 
ces as  are  named  in  the  Articles  of  war  as  subject  to  their 
iiuthorily."* 

It  remains  here  to  add,  that  no  coui't  martial  can  take  cogni- 
zance of  offences  not  conceded  to  its  jurisdiition   by 

ijciieral 

liinitati.m      {]^^.    [j^^y   or    tile    custom    i»f    the    service,    either   "as 

of  juriodic- 

*'""■  crimes  against  the  military  state,  or  as  disorders  and 

neglects  tending  to  the  prejudice  of  good  order  and  military 
discipline."  • 

Sec.  140.  III. — Of  the  General  Towers  and  J^ufies  of  Courts 
Martial,  and  the  punishments  they  may  respectively  impose: 

1.  The  authority  of  courts  martial  is  strictly  limited  to  mili- 
tar}^  persons  and  subjects.     Although  subordinate  to 

Limited  to  .  .  .  i      •        i      • 

iiiiiitiuy    •  the   civd   authoi-ity,  yet,  as  the}'  dei-ive   their   being 

peiHolis. 

from  the  same  source — the  written  laws  of  the  land — 

*  See  sec.  133,  ante. 


OF    COURTS    MARTIAL.  99 

they  arc  entitled  \vitl)in  their  legitimate  bounds  to  "the  same 
respect  to  their  character  and  acts  which  every  citizen  is  re- 
quired to  observe  toward  the  ordinary  courts  of  civil  judica- 
ture."* The  persons  who  arc  subject  to  the  control  and  juris- 
diction of  military  courts  and  law,  have  already  been  pointed 
out."}"  As  to  all  such,  those  courts,  and  the  laws  they  adminis- 
ter, arc  of  the  same  bindinc;  obligation  as  is  the  common  law  of 
the  land  upon  the  community  in  general. 

Sec.  141.     When  a  court  is  once  regularlj*  assembled  and  or- 
ganized, it  is  a  legal  body,  possessed  of  definite  and 
independent   powers.      No   authority,  therefore,  .not  dn"ier  and 

,,,.,.  „  powers       of 

even   that  l)y  which   it  was  convened,  can  interfere  courts  mar- 
tial. 

with  its  proceedings.  The  court  may,  indeed,  in 
doubtful  cases,  ask  instructions  from  a  superior  source,  but 
even  these  when  received  are  not  binding,  to  whatever  respect 
they  may  be  regarded  as  entitled.  The  legal  existence  of  the 
court  continues  till  it  is  dissolved  by  competent  authorit}-.  If 
the  prisoner  has  been  arraigned,  the  court  must  proceed  lo 
judgment,  unless  by  sickness  or  death  its  members  have  been 
reduced  below  the  requisite  standard,  or  where  the  illness  of 
the  prisoner  renders  the  prosecution  of  the  case  impracticable. 
Where  a  member  is  prevented  by  sickness  or  other  cause  from 
attending,  the  court  adjourns  from  day  to  day  for  a  reasonable 
time  before  proceeding  to  business  ;  and  if  a  member's  seat  is 
permanently  vacated,  they  may  nevertheless  organize,  unless 
their  number  is  below  the  required  minimum  ;  but  no  judicial 
act  can  be  performed,  except  by  a  court  legally  organized. 
The  day  and  place  of  the  meeting  can  only  be  changed  by  thi- 
authoritj*  convening  the  courts;  and  if  such  change  becomes 
necessary  it  should  be  reported  to  the  proper  authority,  and 
its  sanction  first  obtained  before  any  order  for  it  is  made  by 
the  court. 

•  Dp  H«rt.  9.  f  Page  _. 


100  JUDGE    ADVOCATK's    VADE    MEOL'M. 

Sec.  142.  Tlie  president  of  u  court  martial  is  charged  with 
President  of  ^^^^  dut}' of  Seeing  that  the  proper  forms  of  proccd- 
tiT*<i.Tt"»  "''^  ^'''-'  duly  ohserved.  lie  directs  the  ordinary  ad- 
am  pu«ciK  JQm.f,,j^gn^g  from  day  to  day,  but  in  those  cases  where 
a  longer  adjournment  is  requisite,  as  from  Saturday  to  Mon- 
day', the  vote  of  the  court  is  necessary-.  The  president  is  not 
entitled  to  any  special  authority  ex  officio  beyOnd  what  is 
needful  for  the  preservation  of  order  and  decorum.  In  voting, 
and  in  the  ordinary  discharge  of  his  duties,  he  is  not  distin- 
guished from  his  comenibcrs.  Upon  questions  of  order,  and 
such  as  relate  to  individual  memijcrs,  aiul  in  "the  daily  routine 
of  business,  he  decides  of  his  own  motion."* 

But  if  an  adjournment  is  announced  by  the  president,  it  may 
be  excepted  to  for  good  reason  by  any  memlier,  who  is  gen- 
erally to  be  allowed  to  state  his  objection  for  the  decision  of 
the  court.  The  adjournment  is  usually  from  day  to  day,  be- 
tween the  hours  prescribed  by  law,  though,  if  necessary,  it 
may  be  for  a  longer  time;  but  upon  an  adjournment  sine  die, 
the  court  can  only  be  reassembled  by  the  authority  which 
originally  convened  it. 

Sec.  143.  The  court  is  cleared  by  order  of  the  president,  for 
deliberation,  or  other  purposes,  as  occasion   demands, 

Court  clear- 

cd,  how  and   and   generally  at  the   request  oi    a  member   or   the 

when. 

Judge  Advocate.     Its  deliiiei-ntions  are  always  with 

closed  doors.     On  other  occasions  it  is  open  to  the  public.     The 

utmost  decorum  and  order  should  be  observed  in  the 

When  witli 

open  door8.  ^onj-t^  and  no  im])roper  behaviour  or  indecorous  words 
should  be  tolerated.  The  authority  of  the  president,  where  a 
sense  of  duty  is  insufficient  to  restrain  members,  will  generally 
enable  him  to  suppress  all  such  exhibitions;  otherwise,  it  is  his 
duty  to  report  the  facts  for  the  action  of  the  olficer  ordering 
the  court. 

*De  Hart,  93. 


OF    COURTS    MARTIAL.  101 

Sec.  144.     TIio  70th  Article  of  war  provides  that  no  person 
shall    use   "menacing   words,    sit^ns,    or   gestures   in 

.  !•  1  Contempt  of 

presence  of  a  court  martial,  or  cause  any  disorder  or  court  pun- 
riot,  or  disturb  their  proceedings,  on  the  penalty  of 
being  punished,  at  the  discretion  of  the  said  court  martial." 
The  authority'  thus  conferred  for  the  punishment  of  contempts 
extends  to  all  persons,  civil  as  well  as  military.  This  is  the 
practice  in  the  military  courts  of  Europe,  and  is  clearly  con- 
ferred by  the  Article  of  war  just  quoted,  which  makes  no 
exception  in  favor  of  civilians.  He  who  voluntarilj'  presents 
himself  at  the  bar  of  a  court  martial  (and  no  civilian  can  be 
there  by  compulsion)  siibjects  himself  for  the  time  being  to 
the  rules  which  govern  them;  and  if  he  suffers  from  a  violation 
of  those  rules,  has  onl}^  his  own  imprudence  or  folly  to  cen- 
sure. Nor  does  this  right  to  protect  itself  depend  on  the  rank 
of  the  members.  It  is  a  pOAver  vested  in  them  as  a  legal 
tribunal  b}*  the  law  of  the  land,  supported  and  strengthened 
by  the  general  principle  that,  as  such  a  tribunal,  it  is  entitled 
both  to  a  proper  degree  of  respect  and  the  means  of  securing 
it;  and  hence,  as  has  been  justly  observed,  "the  prosecution, 
prisoner,  and  witnesses,  although  they  happen  to  be  of  superior 
rank  in  the  army  to  those  who  form  any  such  court  martial, 
are  equall}'  bound  to  observe  the  lawful  injunctions  of  the 
court  as  if  the  same  had  been  altogether  composed  of  officers 
of  a  more  elevated  rank."* 

Sec.  145.  Where  a  contempt  is  committed  before  a  general 
court  martial,  it  may  at  once  pass  Judgment  on  the  offender 
without  regard  to  his  rank.  But  if  he  be  a  commissioned 
officer,  and  the  offence  is  before  a  regimental  or  garrison  court, 
as  they  cannot  in  such  cases  award  any  ))unishmcnt,  the  only 
remcd}*  is  to  imjiose  an  arrest  on  the  offender,  and  report 
the  facts  to  the  proper  authority. 

•  RMnnel  on  Mil.  I.iiw.  .S3.S.  <>.1((. 


102  JUDGE  advocate's  vade  mecum. 

The  contempts,  says  l)e  Hart,*  wliich  may  be  thus  summa- 
rily punished  by  a  court  martial,  are  those  committed  before 
the  court,  of  a  public  and  self-evident  kind..  But  the  ])arty 
should  have  an  opportunity  to  make  such  explanations  to  the 
court  as  ho  may  desire. 

The  court  before  whom  a  contein]>t  has  been  committed  is 
tlic  proper  tribunal  to  judge  of  the  fact,  and,  with  the  excep- 
tions just  indicated,  to  pronounce  the  penalty. 

Sec.  146.  "  In  order  to  promote  the  ends  of  Justice,  to  guard 
against  the  prejudicing  the  pul)lic  mind  in  regard  to 

Proceeiliiigs  . 

of  court  not    any  trial,  as  wcll  as  to  secure  an  honest  and  sincere 

inaxle  known. 

declaration  by  the  witnesses,  t-ourts  martial  may  for- 
bid the  publication  of  their  proceedings  before  the  termination 
of  the  trial.  A  violation  of  such  an  order  would  be  a  contempt 
of  court,  liable  to  be  noticed  and  punished  as  any  other  s])ecies 
of  contempt  may  be."f 

Sec.  147.     With  regard  to  the  duty  of  the  court  relative  to 

the   charijes   submitted   for   trial,   Captain    Simmons 

Court   to  be  '^  ' 

cieured    on  adviscs  that  thc  court  should  "  invariably  be  cleared 

reading   tlie  •' 

ciaiges.  ^1^  ^j^^  reading  of  the  charges  before  the  arraignment 
of  the  prisoner,  to  consider  their  relevancy."  Referring  to  this 
remark,  Dellart  observes];  "that  it  is  the  dut}'  of  courts  mar- 
tial, upon  being  duly  organized,  and  when  the  charges  are  read, 
to  judge  of  tlieii-  pi'()j)i-iety  ;"'  ami  it  Wduld  be  well,  "previou.s  to 
the  arraignment  .of  the  prisoner,  to  clear  the  court, 

To  decide  on  •  i  i  i  r>      i  i  i 

their  pi ojiii-  und  tlion  consider  the  character  or   the  charge  sub- 

ety. 

mitted."  This  mode  of  procedure,  ho  adds,  "could 
never  militate  against  the  interests  of  the  accused,  and  might 
save  much  useless  trouble  and  individual  responsibility." 

Sec.  148.     A  court  martial   has   no  control  over  a  prisoner 

except  in  court.     It  cannot,  therefore,  bestow  upon 

No  control  of  ■      ,     i  /.  i  i  •  i   •       *• 

prisoner  out    liiiii  aiiy  indulgence  or  hivor  b}^  enlarging  nis  iree- 

of  court. 

dom,  or  otherwise,  when   not  in  court.     Jlis  custody 
*  Page  103.  t  De  Hart,  108.  J  Page  111. 


OF    COURTS    MARTIAL.  103 

concerns  his  coinnuvnding  officer,  :;nd  is  subject  to  liisi  discre- 
tion; and  all  that  can  be  required  of  liim  is,  that  reasonable 
and  proper  assistance  which  may  be  necessary  to  advance  the 
business  of  the  court  and  ensure  justice. 

Sec.  149.  All  the  members  necessaiy  to  constitute  the  court 
should  be  present  at  its  openin<:r,  and  so  continue,  and 

1  I  o  All  tliemem- 

if  tlie  court  is  reduced  by  an}-  cause  below  the  niini-  n,7,„Vbc'^pro-' 
mum   number,  the  better  course,  by  far,  is  to  dissolve 
it,  and  convene  a  new  court — although  it  is  held  by  some  mili- 
tary writers  that  new  members  may  be  detailed,  even  without 
consent  of  ])arties,  and  certainh*,  it  is  said,  with  such 

Npwmptn- 

consent,  inasmuch  as  the  record  enables  them  to  be-      »>'i''   not 

desirable. 

come  familiar  with  the  preceding  portions  of  the  trial. 
But  this  practice  is  so  objectionable  that  it  has  few  advocates, 
and  is  voiy  rarely  admitted.  In  this  connection,  Dc  Hart  re- 
marks: *•  should  a  court  be  reduced  below  the  minimum  num- 
ber an  adjournment  sine  die  follows,  or  for  a  different  period, 
according  to  circumstances,  and  the  facts  are  reported  to  the 
])roper  authority,  which  ma^^  declare  the  court  dissolved,  and 
issue  a  new  warrant  for  the  trial.  The  members  who  com- 
posed the  first,  maj^  make  part  of  the  second  court;  but  are 
lialtlc  to  ciiallenge  with  the  new  members,  and  the  proceedings 
a})  initio  must  be  de  }iovo." 

Sec.  loi).  As  alrcad}-  ol)served,  the  names  of  members  are 
called  according  to  seniority,  and  they  take  their  places  in  the 
same  manner  on  each  side  of  the  president.  An  absent  mem- 
ber, who   has   been   so  during  any   part  of  the  trial, 

Mi."piit  mpm- 

cannot  resume  his  place  without  violating  the  whole  t-<-n.ttore- 

turn.  when. 

proceedings.      Neither   can    any    member,  after   tlie 
court  has  been  called  to  order,  leave  his  place  without  permis- 
Hion  from  the  president.     The  vote  is  taken  on  each  question 
until  a  maioritv,  or  such  number  as  is  required  for  . 

•'  •    '  ^  V..t«i.  bow 

the  decision,  is  obtained  ;  an<l  this  decision,  when  an-     •»•«»«>. 
nonnced  by  the  court,  binds  the  minority.     The  maj«»rity  vote 


104  JUDGE  advocatk's  vadk  mkcum. 

decides  all  questions  except  the  fimlin<is  and  sentence  in  i)ar- 
ticular  cases,  where,  as  in  capital  otlcnces,  the  law  i-eqiiires  a 
two-thirds  vote.* 

Sec.  151.  A  court  martial  is  bound  to  examine  all  charges 
presented  by  competent  authority  for  their  considera- 

Court  to  px-  .         .  ,      ,    .        . 

aminoaiitiie  tion.  and  will  uot  bc  Justihed  111  iguoniii;-  any  corn- 
charges. 

plaint  so  presented,  by  reason  of  a  former  arrest  or 

trial  of  the  accused.  Such  facts  must  be  brought  to  the  notice 
of  the  court  by  plea,  and  except  when  this  is  done,  the  court  is 
not  bound  to  notice  them. 

Sec.  152.  Upon  questions  of  law,  the  practice  of  the  ser- 
vice and  the  custom  of  war,  either  party  is  entitled  to 

Parties  may       ,  .  ^     i  i 

havcopink.n   the  opiniOD  oi  the  court,  and  may  request  it  at  any 

of  court. 

time. 

Sec.  153.     The  Articles  of  war  require  the  members  of  all 

courts  martial  general,  regimental  and  garrison,  to  take  a  ])re- 

scribed  oath;  but  every  court  martial  is  to  be  regarded  as  a 

le<:;al    body,  for  certain   ])uri)Osos,  even  before  it  has 

A  lopal  body         ^  "'  '  11' 

forsoim-imr-  ]r,g^j,j  swom,  aud    uiav,  therefore,  imnish  contempts, 

posi'g,  before  '  "  '  '    '  '■       ' 

""'''■  decide  questions  relating  to  the  challenge  of  its  mem- 

bers, and  dispose  of  all  matters  which  are  merely  preliminary 
in  tlu'ii'  character. 

Sec.  154.  2.  Of  the  Punislunonls  which  coui-ts  mtirtial  may 
inflict : 

The  constitution  ilcdari's  lliat  excessive  fines  shall  not  be 
imjjosed,  nor  cruel  and  unusual  punishments  inflicted. 

Cruel  pun-        ,„,  ...  i      i  1 1 

iHiinuntH,       These  tiM-ms    are    ex])licit,  and    liartlly   i-e(piire   com- 

wbat. 

mcnt.  It  is  obvious  that  all  ))unishments  are  a'uel 
which  violate  the  dictates  of  humanit}',  ami  are  not  necessary 
to  vindicate  the  claims  of  justice.  Every  ])unisliment,  more- 
over, is  to  be  esteemed  unusual  whidi  is  unknown  to  the  law 
and  the  custom  of  the  service,  and  is  pui-cly  arl>iti-ary  in  its 
origin. 

*  See  87th  Article  of  War,  and  sections  89,  91,  ante. 


OF    COURTS    >rARTIAL.  105 

Sec.  155.  In  awardin<i;  punis^limcnts,  a  large  discretion  is 
necessarily  allowed  to  military  courts.  But  as  au-  Di«rr.fion  in 
thority  is  generally  liable  to  abuse,  wliere  it  is  unrc-  •'"""* ""'^• 
strained  by  law,  great  watcbfulncss  is  required  lest  the  ]iroper 
bounds  of  a  reasonable  and  just  discretion  should,  under  any 
circumstances,  be  exceeded.  There  arc,  however,  two  impor- 
tant and  valuable  checks  upon  this  power  of  the  court,  which 
arc  to  be  found  :  1st,  in  the  reviewing  authority,  whose  duty 
it  is  to  correct  every  such  abuse  of  power  by  returning  the 
case  to  the  court  for  reconsideration,  or  by  disaj^proving  the 
proceedings  altogether;  and,  2dly,  in  the  individual  rcs])on- 
sibility  of  the  members,  as  already  explained.  Where  the 
law  is  express   in   its   directions   as   to  the   kiiid   or      „  , 

i  Kiile     in 

quantum  of  punishment, it  must,  of  course,  be  obeyed;  »^*'»"''"«- 
where  it  is  silent,  or  of  too  doubtful  import  to  be  applied,  the 
punishment,  as  just  observed,  must  be  determined  by  the  court, 
and  hence  the  general  rule  in  awarding  punishments  may  be 
stated  to  be  a  just  and  reasonable  discretion,  to  be  exercised 
always  in  strict  subordination  to  the  law  and  custom  of  the 
service,  and  according  to  the  merits  of  the  case. 

Skc.  150.  We  have  already  shown  that  the  general  coii„  . 
martial  is  the  highest  militar}-  tribunal.  It  ma^',  therefou;, 
impose  wiiatevcr  punishment  the  law  and  facts  of  the  case  de- 
mand—  from  that  of  death  to  the  lowest  degree  of  fine  and 
imprisonment.     Capital  punishment,  however,  it  must 

Capita.} 

always  be  remembered,  cannot  be  inflicted  at  the  ar-  p"n'»hnieMt. 
bitrary  discretion  of  the  court,  but  only  in  such  cases  and  for 
such  offences  as  aro  specifically  named  in  the  law. 

.Sec.  157.  The  offences  for  which  the  punishment  of  death  is 
thus  denounced,  and  may,  therefore,  be  inflicted  at  the  discre- 
tion of  the  court,  are  as  follows  : 

The  beginning,  exciting,  causing,  or  joining  in  any  mutiny 
or  sedition,  by  any  officer  or  soldier. 

The  failure  by  any  officer,  non-commissioned  officer,  or  sol- 


lOG  JUDGE  advocate's  vade  mecum. 

(licr,  ])rosent  at  sucli  imitiiiy  or  sedition,  to  endeavor  to  sup- 
press the  same.* 

Desertion  in  time  of  wnr.-\ 

Persuadini^  another  to  desert. | 

Sleeping  of  sentinel  on  post.§ 

Occasioning  false  alarms  in  camp,  etc.|| 

Doing  violence  to  an}'  person  bringing  provisions  or  other 
necessaries  to  the  camp  or  quarters  of  the  army  in  cases  speci- 
fied in  the  Article  of  war.^l 

Misbehavior  or  bad  conduct  before  the  enemy,  shamefully 
al)aiid<)ning  any  foi't.  post,  etc.,  or  inducing  others  to  do  so, 
casting  away  arms,  ammunition,  etc.,  or  quitting  his  post  to 
])lunder,  etc.,  by  any  officer  or  soldier.** 

Making  known  the  watchword;  giving  a  dift'erent  watch- 
word or  j)ar()K'  from  that  received.f"}" 

Forcing  a  safeguard  in  foreign  parts;  relieving  or  protect- 
ing the  enemy;  corresponding  with,  or  giving  intelligence  to 
the  enemy.|;); 

Compelling  the  surrender  of  any  commander  of  a  post,  gar- 
rison, or  fortress. §§ 

'    'Sec.  158.     And  here  it  must  ac-ain  be  observed  that,  in  the 
ti  .  . 

'  '  various  cases  above  cited,  with  onh'  a  single  exeop- 

Cai>ital  pun-  ./  o  i 

isiiiuentpor-   tj,,,,    {\^q  punishment  of  death  is  not  commanded,  but 

initteJ,    nut  i  ' 

commnnd.Mi.  ^^^^j^.  permitted  at  tlie  discretion  of  the  court,  who 
may  inflict  "such  other  punis/tDicnt,"  as  circumstances  Justify. 
The  exception  referred  to  is  the  offence  of  forcing  a  safeguard 
in  foreign  ])arts,  for  wliicli  the  ])i'n:ilty  of  death  is  peremptorily 
denouiici'd  in  tiie  ontli  Article  of  war.  But  it  is  I'xpressly  de- 
clai-ed  in  the  iS7th  Ai-ticle  that  no  person  shall  suffer 

Two-tliinls 

yotorequire.1  ,i(..^tij  ^,^^  ^y  f/^f,  concurrencc  of  two-tkinls  of  the  inemhcrs 

inHontonceoi  •' 

death.  ^y  ^^  general  court  martial;    nor  except  in   the  cases 


«See  Articles  of  War,  7,  8. 

t  Art  of  War  20;  Act  U.  S.  Congres.s.  May  L'9,  18;!0;  Coufctlcrato  Congress,  1861. 

+  Article  of  War  23.            ||  Article  4H.  »»  Article  52.         Jf  Articles  55,  56,  57 

^  Article  46.                         Ij  Article  51.  ft  Article  53.         §§  Article  59. 


OF    COURTS    MARTIAL.  107 

expressly  mentioned  in  tlio  Articles  themselves.  By  the  C7th 
Article  of  war,  the  trial  of  capital  cases  is  prohibited 

,  I     •         1  !•  Inferior 

to  any  irarrison  or  rcirmiental  coui't.  ana  is  thus  Inn-      cnnxnot 

•'    '^  '^  to  inflict. 

ited  to  general  courts  martial  only.     And  the  90th 

Article  provides  that  all  crimes  not  capital,  and  all  disorders 

and  neffli<rences  to  the  preiudice  of  ijood  order  and 

^     ^  '        •'  ^  What  to 

military  discipline,  though  not  mentioned  in  the  Arti-  I'lmuh. 
cles  of  war,  may  be  taken  cognizance  of  and  ])nnished  b^'^  a 
general  or  regimental  court,  according  to  the  nature  and  de- 
gree of  the  offence,  at  their  discretion.  Punishment  by  stripes 
can  only  be  awarded  by  a  general  court  martial,  and  is  limited 
to  the  crime  of  desertion,  nor  can  more  than  fifty  lashes  be  in- 
flicted for  any  one  such  offence. 

Sec.  159.  tSiispension  of  Commissioned  Officers  from  pay  and 
command  may,  under  the  provisions  of  the  84th  Arti- 
de  of  war.  be  directed  by  a  general  court  martial  ac-  "f  <^"'nmi«- 
cording  to  the  nature  of  the  offence.  This  punish-  '^''^' 
ment  is  in  the  discretion  of  the  court — which  maj-  direct  the 
suspension  of  the  officer  only  from  his  command,  or  may  in  ad- 
dition suspend  his  pa}*  and  emoluments  at  the  same  time.  In 
this  connection  it  has  been  well  observed  :  "In  the  determina- 
tion of  such  mode  of  punishment,  courts  martial  in  the  cases  of 
commissioned  officers  should  take  a  liberal  view  of  the  subject 
before  pronouncing  judgment,  and  refer  not  only  to  the  merits 
or  demerits  of  the  individual,  but  to  his  appropriate  place  in  so- 
ciety as  a  gentleman,  and  the  possible  influcTice  which  his  acts, 
habits,  and  associations,  whidi  are  all  more  or  less  depend- 
ent on  liis  means  of  support,  may  exercise,  through  public 
opinion,  on  the  military  service.  *  *  *  If  the  power  given 
in  the  Article  is  considered  merely  as  a  means  of  punishment 
*  *  it  is  certain  that  it  is  deficient  in  a  very  essential  fea- 
ture of  distributive  jtisticc,  to  wit :  eqnalit}'  and  uniformity  of 
operation  when  applied  to  different  persons.  What  in  one  case 
would  be  a  severe  deprivation,  and  a  source  of  anxietj  and 


108  JUDGE  advocatk's  vade  mecum. 

pain,  would  in  aiiotlior  he  regarded  witli  total  indiffereTico; 
and  this  from  the  mere  aeeidcntal  cireumstanees  of  the  par- 
ties." 

Sec.  100.     Reprimand.^  and  admonitions,  either  puhlic  or  jiri- 
vate,  are  a  mode  of  punishment  frequently  awarded 

Ufprinmnds.  .  •       •  \        n->  i         •         i    i 

against  commissioned  ofticers,  and  are  autiionzed  by 
long  continued  custom  rather  than  hy  express  provision  of 
law. 

Sec.  161.     Cashiering  or  dismission  is  a  severe  but  sometimes 

necessary  punishment.     The  various  offences  to  which 

(■asliicring.      ,  ,  i.i  •!•  i-ij-i  /> 

it  may  be  a]>]Mied  are  indicated  in  the  Articles  or  war, 
though  it  is  not  expressly  restricted  to  the  offences  thus  speci- 
fied. The  14th  and  45th  Articles,  however,  render  it  obliga- 
tory on  the  court  to  cashier  every  officer  who  shall  be  con- 
victed of  the  crimes  indicated  therein,  while  as  to  the  delin- 
quencies mentioned  in  the  ii2d  Article,  the  court  is  authorized 
to  cashier  or  othei'witie  punish  the  offender.  The  85th  Article 
further  directs  that  where  a  commissioned  officer  is  cashiered 
for  cowardice  or  fraud,  it  shall  he  added  to  the  sentence  that 
the  crime,  name,  etc.,  of  the  offender  shall  be  published,  etc. 

Sec.  ^(')'l.  To  the  sentence  of  cashiering  or  dismissal  may 
be  added  the  incapacity  to  hold  office  under  the  government, 
lint  this  adilition.  says  De  Hart,  can  only  he  made  in  cases 
specially  named  in  the  law. 

This  incapacity  to  hold  ofiice  was  perhaps  formerly  implied 
in  the  sentence  of- every  officer  who  was  cashiered,  and  it  was 
sujjjioscd  that  the  latter  term  Itself  imported  a  greater  degree 
of  infamy  than  mere  dismission.  Both  terms  are  employed  in 
the  Articles  of  war,  and  applied  to  dilTci-ent  of!ences;  as  for 
example,  in  the  8;5d  Article,  which  directs  dismission  on  the 
conviction  of  conduct  unhecoiiiiiig  an  officer  and  gentleman; 
and  the  S5th  Article,  Just  referred  to,  directing  that  when  an 
officer  is  cashiered  for  cowardice  or  fraud,  he  shall  be  i)ub- 
lished,  etc.     Whence  it  appears  that  the  supposed  graver  term 


OF    COURTS    MARTIAL.  109 

of  cashiering  is  appropriated  to  mere  brcaelies  of  discipline, 
while  for  more  serious  offences  the  punishment  of  dismission 
is  deemed  sufficient!  This  inconsistency  can  only  he  ox])lained 
b}'  assuming  that  no  distinction  was  designed  to  be  observed 
in  the  terms  referred  to ;  nor  does  any  seem  now  to  be  ad- 
mitted in  the  practice  and  understanding  of  the  service.  The 
danger  of  misappi-chcnsion  on  this  ])oint  may  generally  be 
avoided  by  adhering,  in  the  sentence,  to  the  terms  of  the  law 
directing  particular  offenders  to  be  cashiered  or  dismissed,  as 
the  case  may  be;  and  by  clearly  expressing  the  intention, 
wherever  entertained,  to  debar  the  convicted  party  from  the 
honors  and  emoluments  of  office. 

vSec.  163.  There  are  two  offences  specified  in  the  39th  and 
48th  Articles  of  war  respectively,  viz  :  embezzlement  or  mis- 
application of  money,  and  the  "conniving  at  the  hir- 

Embezzlc- 

ing  of  another  "  to  perform  dutj'^,  etc.,  by  any  non-      '"<'"*• 
commissioned  oflicer,  which  may  be  punished  by  reduction  to 
the  ranks;  and  in  the  case  of  embezzlement  by  the  addition  of 
the   necessary    "stoppages   until   the   money    is  made   good." 
These  cases  ma}-  be  tried  by  a  general,  regimental, 

,  .  „  .  StoppacPM. 

or  garrison  court,  as  circumstances  justify  or  require. 

The  same  tribunals,  under  authority  derived  from  the  custom 

of  the  service,  exercise  the  right  for  various  other  of- 

Rodnrtion 

fences,  of  reducing  non-commissioned  officers  to  the  toranUg. 
ranks.  In  some  cases  this  right  is  confirmed  by  the  regula- 
tions of  the  army,  and  seems  lo  be  necessary  in  maii}^  in- 
stances where  further  punishment  is  requisite,  inasmuch  as  a 
non-commissioned  officer  can  neither  suffer  imprisonment  nor 
corporal  punisliment  before  he  has  been  reduced  to  the  ranks.* 
Sec.  104.  Fiixr  and  imprisonment  is  a  common  mode  of  pun- 
ishment with  militar}-  courts.     And  that  of  hard  lahor 

Fin"  and  im- 

is  sometimes  added,  according  to  the  exigencies  of  the  priwwmeoi. 

J ■  — ^ — 

•  Df  Hart. 


110  JUDGE    advocate's    VADE    MECUM. 

case.     The  authority   for  thos^c  ininishments   is  found  in    the 
GTtli  Article  of  war.  whic-li  j)rovidos  that  no  garrison 

Hard  hilxir. 

or  regimental  court  shall  intlict  a  tine  excelling  one 
mouths  pay,  nor  imprison  nor  put  to  hard  labor  any  non-com- 
missioned officer  or  soldier  for  a  longer  time  than  one  month. 
Sec.  10;').  The  punish mcnt  of  imprisonment  a7id  flogging  can- 
not be  imposed,  for  the  same  offence,  in  the  discretion 

Flogging. 

of  the  court.  There  must  be  express  authority  for  it. 
It  should,  moreover,  be  observed  that  the  restriction  in  the 
07th  Article  extends  onU'  to  the  inferior  courts.  Oftences, 
however,  may  be  committed,  anil  sometimes  are,  of  which  the 
»»-eneral  court  martial  would  have  either  concurrent  or  exclu- 
sive  jurisdiction,  but  for  which  no  specific  punishment  is  pro- 
vided, or  where  the  limited  degree  ot  piinislnnent  allowed  to 
the  other  courts  would  ])rove  inadequate.  Where  this  is  the 
case,  these  modes  of  punishment,  by  fine  and  impris- 
onment, and  hard  labor,  may  be  resorted  to  by  the 
general  court  martial.  This  is  authorized  not  only  by  the 
custom  of  the  service,  but  by  the  practice  of  the  civil  courts, 
in  which  fine  and  imprisonment  is  usually  imposed  for  those 
offences  to  which  the  law  has  affixed  no  other  mode  of  punish- 
ment. Where  the  jurisdiction,  however,  is  assumed  to  be 
concurrent,  and  is  exercised  by  a  general  court  martial,  care 
should  be  taken  never  to  inflict  a  greater  degree  of  punish- 
ment than  that  which  might  lawfully  be  imposed  had  the  case 
been  tried  by  a  garrison  or  regimental  court.* 

Skg.  100.     The  punislmicnts  iiillietcd   on  commissioiuMl  oHi- 

cers   are    thus   shown    to    be   admonitions   or    repri- 

riouoTpun-   niands;  suspension  from  rank,  and  forfeiture  of  pay  j 

ishmentslbr  i .         ■  i     r.  i 

coinmiBHion-   cashierin"-,  or  dismissal  irom  the  service. 

cd  ofliceis.  '^ 

Those    usually    awarded    against   enlisted    soldiers 
are  confinement,  solitary  or  otherwise;  flogging;  forfeiture  of 


*See  sec.  129. 


OF    COURTS    ^lARTIAL.  Ill 

pay  and  allowances;  marking  b}'  letter  on  the  hip; 

,  ,  .  „  .  For  soldiers. 

reprimands,  and  dnunimng  out  oi  service. 

Sec.  167.  Non-commissioned  officers  are  frequently  sen- 
tenced  to   loss   of   rank,  and   this   must  always   be  ,,  ,   ,•    , 

'  •'  IJpilnrtion  to 

done    before   they  can    be   punished    by  stripes.     In  ''"'"'■ 
other   respects,  they  are,  as  to  punishments,  to  bo  regarded 
on  the  same  level  with  ordinary  soldiers.  ■ 

The  punishment  of  death  may  he  awarded  against  an  officer, 
non-commissioned  officer,  or  soldier,  under  the  restric- 

/•       1  o—     1         «  •     1  /•  T  n  •  1  Dcatli. 

tions  ol  the  <S<tli  Article  ot  Avar.     If  a  particular  pen- 
alty is  annexed  by  law  to  an}-  offence,  no  other  can  bo  imposed 
l)y  the  court;  nor  can  two  essentially  different  punishments  be 
inflicted  for  the  same  cause,  unless  by  express  direction  of  the 
law. 

Should  it  happen,  remarks  Dellart,  "that  an  offence,  falling 
within  the  jurisdiction  of  a  court  martial,  be  not  provided  for 
by  a  special  penalty,  but  left  to  be  determined  by  the  discretion 
of  the  court,  such  sentence  must  be  in  accordance  with  the 
common  law  of  the  land,  or  tlie  custom  of  war  in  like  cases; 
a  departure  from  this  would  make  the  sentence  unusual,  and  as 
such,  unlawful." 

Skc.  IGS.  Wc  have  thus  endeavored  to  point  out  briefly 
the  law  and  general  principles  which  should  govern  courts 
martial,  in  determining  both  the  kind  and  degree  of  punish- 
ment to  be  awarded  against  offenders.  The  directions  of  the 
law,  and  the  discretion  of  the  court,  controlled  by  the 

.  .  Of-iipral  nilc 

customs  of  the  service  and  a  just  humanit}',  are  gen-  aniMjuini-ii- 

m<>nf. 

erally  a  sufficient  safeguard  for  the  conduct  of  mili- 
lar}-  courts  in  this  respect.  The  violation  of  these  rules  might 
subject  the  members  of  the  court  to  a  civil  action  from  the  per- 
son whose  rights  have  been  disregarded  and  infringed  b}*  their 
judgment;  and  must  tend  tf»  the  prejudice  of  that  wholesome 
influence  and  authority  which  sluuild  be  exercised  in  the  mili- 
tary communit}-.* 

•  De  Hart,  60. 


112  JUDOE  advocate's  vape  mecum. 

Sec.  160.     Those  who  are  called  to  discharge  the  imporlant 

duties  devolving  on  inilit.irv  triltnnals.  cannot  study 

of'theluiK    too  carefully  the  rules  and  principles  which  should 

jcct.  ^  . 

direct  their  course.  Not  only  are  the  interests  and 
diifiiitv  of  tiio  law  to  a  hirgc  extent  confided  to  them,  but  the 
reputation  and  poi-sonal  rights  of  individuals  arc  frequently  at 
tlicir  disposal.  Even  trivial  errors  are  often  productive  of  per- 
nicious consequences,  which,  however  regretted,  cannot  always 
or  easily  he  corrected.  "The  power  of  discrimination,"  says 
])('  JIart,  "by  which  members  of  courts  martial  an-  enabled 
to  distinguish  the  path  before  them,  is  not  intuitivel}'  derived. 
A  habit  of  reflection  and  stud}-  of  the  laws  can  alone  place  it 
within  their  roach,  and  thus  save  them  from  the  expression  of 
inconsistent  opinions  or  the  commission  of  illegal  acts  which 
react  upon  the  individual  and  the  profession."  He  only  is  a 
wise  and  just  magistrate  who  diligently  seeks  to  discharge  his 
whole  duty,  so  as  while,  in  the  words  of  Blackstonc,  he  avoids 
"  oppression  on  the  one  hand,  on  the  other  are  stifled  all  hopes 
of  imj)unity  or  mitigation,  with  which  an  offender  might  flat- 
ter himself,  if  his  ])unishment  depended  on  the  humor  or  dis- 
cretion of  the  court." 


Ml 


Chapter  VI. 


OF  MILITARY  TRIALS  AND  THEIR  INCIDENTS. 


Sec.  170.  "We  are  tluiH  brought  to  the  subject  of  military 
trials,  and  shall  consider,  as  was  proposed: 

I.  The  charge.'^,  and  other  preliminaries  to  the  trial. 

II.  Particular  trials  and  their  incidents. 

III.  The  findings  of  the  court. 
lY.  The  sontencc  of  the  court. 

I.  Ot  tlie  charges,  and  other  preiJTninaries  to  the  trial. 
1.  As  to  the  charges: 

A  charge  is  the  formal,  written  accusation  on  whici)  is  based 
the  trial    before  a  court    martial   of.  any  person  ac- 

'■  Dofinition 

cused  of  crime  or  other  delinquency,  and  should  con-  ofchargp. 
tain  a  brief  and  accurate  Btatement  of  those  circunistance« 
which  arc  neccBsary  to  ascertain  the  existence  of  all  facts 
essential  to  sustain  the  accusation.  It  will  lie  against  all  mil- 
itary persons  who  are  guilty  of  a  violation  of  thfc  military 
law^  and  regulations  of  the  service,  the  customs  oi'  wj.r  utid 
the  orders  .of  any  competent  military  authority. 

Sec.  171.  It  is  only  here  proposed  to  bring  to  view  the 
principal  rules  which  seem  necessary  to  a  comprehensi<»n  of 
the  particular  form  and  manner  in  which  charges  arc  preferred 
before  military  courts.  Before  Ktating  thc<»e  rules,  however,  a 
few  general  remarks  will  be  in  phuo. 

8ays  Hlackstone:  "It  is  a  general  rule  that  no  person  shall 
be  excused  from  punishment  for  disobedience  to  the  laws  of 
8 


114  JUDGE  advocate's  vade  mecum. 

his  country,  unless  he  be  expressly  defined  and  exempted  by 
tbi'  laws  (lieniselves. 

"  All  parties  are  considered  responsible  to  the  law  of  the 
land,  with  a  lew  marked  excojitions,  the  character  and  extent 
of  which  are  exi)ressiy  limited  and  dctincd."*" 

*'  Every  jierson  at  the  ajfc  of  discretion  is,  unless  tin-  con- 
trary be  proved,  j)rcsumed  by  the  law  to  be  sane,  and  account- 
able for  his  actions.  I 

The  object  of  military  li-ials  is,  by  the  proper  j)unishment  of 
oft'onces  and   delinquencies,  to  preserve  the  dit'nity, 

Object  of  mil-  ^  '  O        ^  ' 

itary  triiiiK.  oi'd^r,  and  discijilinc  of  the  military  service.  All 
charges  should,  therefore,  be  "  Ibunded  in  ])ublic  utility,"  and 
never  made  the  occasion  of  "  gratilying  private  or  personal 
resentments." 

Sec.  172.  When  the  charges  are  read  to  the  court,  which, 
as  stated  in  a  previous  chapter,  it  is  the  duty  of  the 

Court  to  .  /.  1      • 

examine       Judge  Advocatc  to  do,  the  court,  alter  being  pi-oper- 

charges. 

ly  organized,  should  examine  and  decide  as  to  their 
character  and  titness  respecting  the  statement  and  delinition 
of  the  crime  charged,  and  the  precision  of  the  language  cm- 
ploj-ed.  If  suflficient  objections  appear  on  such  examination, 
as,  for  example,  that  the  offence  is  cognizable  onl}'  in  the  civil 
courts,  01'  the  accused  i*  not  anu-nable  to  military  law.  pro- 
ceedings should  be  suspended,  and  the  question  submitted  to 
the  authoi'ity  which  convened  the  court.  And  if  the  charge 
is  manifestly  erroneous  or  illegal,  it  is  said  the  court  ought  at 
once  to  reject  it.|  So,  also,  if  the  charge  is  prepared  in  a  loose 
and  indefinite  manner,  may  the  prisoner  demand  a  jjrecise 
statement  of  the  facts  on  which  he  is  to  be  tried.  The  Judge 
Advocate  may  also  remonstrate  against  proceeding  to  tibial 
upon  any  charge  which  is  deficient  in  precision  and  accuracy 
of  statement. 

•  Wharton:B  C.  L.,  81.  f  Archibald's  C.  PI.  %  De  Hart,  100,  101. 


OF    MILITARY    TIIIAT-S    AND    TITF.TH    INripENTS.  115 

Skc.  173.  PrcvioHH  to  arraignment,  it  is  competent  for  the 
party   ordering    the    trial,   and    also    for   the   Judge 

,         .        ,  ,  Charge  may 

Advocate,   if  bo  authorized,  to  alter  or  amcnfl   any   iie amcndod, 

when. 

charged  But  this  would  bo  irregular  after  plea,  except 
on  a  plea  of  abatement,  as  for  a  misnomer  or  a  wrong  addi- 
tion.* And  after  arraignment  and  swearing  of  the  court,  no 
additional  charge  can  be  entertained.  Additional  charges  can 
onl}'^  be  reached  by  reswearing  the  court  after  the  previous 
charges  are  disposed  of,  and  then  proceeding  as  in  a  new  trial. 
It  is  never  proper  to  allow  the  causes  of  any  accusation  or 
charge  to  accumulate,  for  the  purpose  of  forming  a 

„  ,  .        J  -111  .         . ,.  ^'o*  to  ''e  al- 

cnmc  of   sucli  magnitude  as  will  then  justify  prose-  iowe<it«  ac- 
cumulate, 
cution.     This  course,  says  De  llart.  is  prohibited  by 

the  regulations  of  the  arm}',  so  that  if  "  the  facts  as  they  arise 

arc  not  of  a  kind  to  be  made  matter  of  charge  at  the  time,  they 

should  not  at  a  future  period  be  revived." 

Whether  the  charges  sliouid  be  read  to  the  witnesses,  is  mat- 
ter of  serious  doubt.  They  certainly  should  not  be  where  the 
language  is  such  as  to  be  suggestive  of  answers. 

8ec.  174.  While  that  technical  strictness  which  is  observed 
in  the  ordinary  courts  of  law  on  the  subject  of  pleading  does 
not  obtain  in  military  tribunals,  there  are,  nevertheless,  certain 
requirements  not  to  bo  lost  sight  of  in  framing  the  charges, 
and  tlu'  answers  or  pleas  thereto.  It  is  as  essential  in  the  one 
court  as  the  other  that  accuracy  and  conciseness  of  statement 
should  be  observed  and  diligcntlj'  practised. 

Sec.  175.  We  have  already  shown  what  the  term  charge 
implies.!      In   framing  it,  as  just    noticed,  technical 

Oiarjrp — 

nicety  is  not  requisite,  yet  it  should  always  contain  Hi'.'^m" 
such  a  "desorijjtion  of  the  offence  that  the  defendant  '^'"«*"»- 
may  know  what  crime  he  is  called  on  to  answer,  Mnd  the  court 
may  Ite  warranted  in  their  conclusions"  respecting  it. 

•Tltid,  101.  102.  t  8eetio«  170. 


no  junnK  apvocatk's  vadk  mkoum. 

Wliat.  tlii'ii.   :irt>   flio   |iriiiii]i;il    I'lilos  to   bo  oltscrviMl    to   ihis 
ond  ? 

1.  A  charge  s/iould  he  stated  in  definite,  accurate,  and  direct 

terms  : 
niUnin  lo  sccui'O   tuis,    all    cufuinlocut luM   iiiiu   arguinciil 

fnuniiig. 

•  should  be  avoided,  ami  only  plain,  brief,  and  positive 
language  employed.  All  surplusage  should  he  rejected,  and  no 
variant  or  ineonsistent  statenientH  should  he  allowed. 

2.  Certainty  is  at  all  times  necessary  to  a  properly  framed 

charge.     This  is  requisite  both  as  to  the  party  accused 

Cerlaintv.  ,  .„,  i     ,.         i  i  i 

ami  to  tnnc  and  place.  I  he  "  (ieieinlant  must  he  de- 
scribed," says  De  Hart,  "by  his  title  or  raidc,  christian  name, 
and  surname,  and  the  addition  of  the  company,  regiment,  or 
corps  to  which  he  belongs.''  Care  must  he  taken  to  set  forth 
Ills  name  -wilh  accuracy,  and  a  mistake  in  any  part  of  the 
name  will  be  fatal;  though  it  seems  that  if  the  sound  of  the 
name  is  not  aifected  by  the  misspelling  the  error  is  not  mate- 
i-ial."*'  Such  difticulties,  common  in  civil  courts,  are  not  likely 
to  occur  in  military  trials,  where  the  name  of  the  defendant  is 
so  easily  ascertained  and  generally  known. 

Certainty  as  to  time  and  place. — In  law,  time  ami  j)lace  musi 
be    attached    to   everv    material    fact   averred    in   an 

Time  uml  ' 

piiico.  indictment. I      And   it   is  said   lluit  the  same  minute- 

ness is  j-equired  before  military  courts  in  s])ecitying  time  ami 
place  as  in  the  statement  and  description  of  the  oiVencu.  It  is. 
however,  admissible,  when  doubt  exists  as  to  the  precise  time, 
to  state  the  fact  as  having  occurred  *' on  or  al)Out  "  a  partic- 
ular d:i\,  which  must  always  he  wilhin  a  reasonable  time. 
But  if  cither  a  j)reciso  time  or  j)lace  forms  a  necessary  ingre- 
dient in  the  offence,  it  must  be  accurately  and  truly  set 
forth.|  Time,  sa3's  De  Hart,  is  a  ''  necessary  ingredient  in  the 
oflfence,  when  the  circumstances  or  conduct  would  on  one  occa- 


*  Wharton's  Grim.  Law,  154. 
t  Cliitfy  on  Pluading.  %  Do  Hart 


OF    MirrTAHY    TRIAT,S    ANH    THEIR    INCinKNTS.  117 

r 

sion  constitute  a  j).articular  crime,  though  at  Jinotlier  it  wouM 
be  different  in  its  character.  Thus,  where  an  officer  is  charged 
witli  l)cing  (Innik  on  duty,  under  the  45th  Artich;  of  war,  it 
would  be  necessary  to  set  forth  the  nature  of  the  duty  and  the 
precise  day,  or  nearlj'^  so.  that  the  time  may  not  be  confounded 
in  the  testimony,  and  thus  lead  the  court  to  adjudge  him 
guilty  of  a  crime  the  penalty  of  which  is  arbitrarily  fixed  by 
law." 

Still,  it  is  admitted  that  a  much  greater  latitude  is  allowed  in 
military  than  in  the  civil  courts,  in  respect  to  allega- 
tions of  time  ;  but  this  y)riYilege,  according  to  Tytler, 
is  always  accompanied  with  the  proviso  that  the  "  charge  is  in 
other  respects  sufficientlj'  preci.se."  This  indulgence,  he  adds, 
"is  granted  only  from  necessity,  and  in  no  case  where  it  is 
possible  for  the  prosecutor  to  mark  the  time  with  certainty  and 
precision  ought  he  to  be  allowed  such  latitude,  as  it  deprives 
the  prisoner  of  all  opportunity  of  proving  an  ali.ln."  And  under 
any  circumstances,  care  should  be  taken  that  wherever  time 
forms  a  necessary  ingredient  in  the  offence  charged,  it  should 
be  so  stated  as  to  avoid  all  difficulty  in  ascertaining  from  the 
evidence  the  true  time  involved.  And  although,  adds  l)e  Ilart 
in  this  connection,  "there  is  no  military  crime  to  insure  con. 
viction  of  which  it  is  essential  that  the  precise  day  should  be 
set  forth  ajid  proved,  yet  it  is  essential  for  a  conviction  in 
some  cases  that  the  time  should  be  so  nearly  declared  that,  if 
found,  it  may  not  appear  to  be  a  different  day  from  the  one  in 
which  the  offence  could  have  been  committe«l.  That  is.  the 
allegation  of  time  should  be  so  well  ascertained  as  that  the 
alternate*  words  (usually  employed)  'on  or  about  the  said 
time,'   should  \oaxr  no  doubt  of  their  truth." 

The  same  rules  generally  a]»ply  to  allegations  as  to  jilnrr.    Tn 
the. latter  cane  it  would  fteem.  indeed,  that  less  indul- 
gcnce  should  be  allowed,  as  precision  in  this  respect 
is  generally  much  more  easil}*  obtained.     But  it   will  be  found 


lis  JunoK  advocate's  vade  mecum. 

a  safe  rule  that  botli  ti"ino  and  ])laii'  should  he  ])lainly  and  con- 
sistently allei;c<i  in  every  material  liu-t. 
a*  u.  tbe  3.  A  charge  should  be  certain  as  to  the  person  against 

person. 

iphotn  the  offence  is  alleged  : 
Offences  arc  sometimes  committed  ai^ainst   the  j)erson  and 

properly  of  individuals,  or  tliere  may  be  breaches  of 

discipline  with  respect  to  particular  persons.  In  sucli 
and  similar  uistances,  where  the  offence  is  made  the  subject  of 
a  char«jje,  the  name  of  the  injured  party,  if  known,  must  be 
accurately  set  forth.  If  at  the  trial  a  variance  in  this  particu- 
lar  is  proved,  it  will  ])rovc  fatal.*  But  if  the  name  proved  l^e 
ide7n  sonans  with  that  in  the  change  or  indictment,  and  dif- 
ferent in  spelliu!^  only,  the  variance  will  be  immaterial  ;t  as,  for 
example:  "  A'ff « "  for  Keeno,  ^^  Segrave"  for  Seagrave,  etc. 
The  name  given  must  l)e  that  by  which  the  ])arty  is  generally 
known.  And  where  third  |>ersons  cannot  be  described  by 
name,  it  is  sulHcient  to  charge  or  describe  them  as  "  a  certain 
person  or  persons  unknown."!  These  cases,  however,  are 
exceptions  to  the  general  rule,  for  wherever  the  name  <»!'  the 
injured  part}"  is  known,  oi-  can  be  ascertained,  it  must  be  full>- 
and  correctly  stated. 
4.   The  charge  must  be  certain  as  to  the  facts  involved,  and  the 

intention  of  the  accused  : 

Cciiiiiiity  an 

tofucts.  \^  \^  „(j(^  sufficient  to  state  in  general  terms  that  a 

l)articular  offence  has  been  committed,  or  any  incumbent  iluty 
neglected,  "but  the  facts  and  circumstances  must  be  speciticall}' 
set  forth,  and  the  offence  miisl  apprar  on  the  faee  of  the  charge 
as  a  distinct,  substantial  offence.  A  man  cannot  be  charged 
with  being  an  habitual  violator  of  orders,  or  a  common  thief; 
but  the  chai'ge  must  set  forth  every  iact  and  circumstance 
which  is  necessary  to  make  u]>  the  oll'ence.  lu  llie  ordinaiy 
courts  of  law   tliere  are  excejUioiis   to  this  j)rint-i]»le,  growing 

•  Wharton's  Crim.  Law,  277.  f  Ibid,  287.  %  Ibid,  158. 


OF    MILITARY    TRIALS    AND    TUKIR    INCIDENTS.  110 

out  of  nccessit}'.  As.  for  iiistiinoc,  a  man  may  he  indicted  for 
being  a  common  barrator,  without  detailing  the  particulars  of 
the  barratry  ;  or  a  woman  may  be  indicted  as  a  common  scold, 
without  detailing  the  particulars  of  her  conduct.  But  this 
cannot  be  done  in  military  courts,  because  there  particular 
acts  or  conduct  constitute  particular  crimes.  Under  this  rule, 
therefore,  an  officer  cannot  be  charged  with  being  a  common 
liar.  There  is  no  military  law  which  recognizes  the  specific 
offence  of  lying;  but  conduct  of  that  character,  according  to 
the  attendant  circumstances,  would  necessarily  be  laid  under 
the  eighty-third  (83)  or  the  ninety-ninth  (99)  Article  of  war,  as 
conduct  "unbecoming  an  officer  and  a  gentleman,"  or  "prt'ju- 
dicial  to  good  order  and  military  discipline."  The  particular 
a<;ts  or  circumstances,  then,  by  which  the  violation  or  disregard 
of  truth  was  evinced  by  the  defendant  must  be  cited  in  the 
charge,  and  thus  be  shown  in  evidence.* 

Although  intention  is  incapable  of  actual  proof,  and  a  man 
is  presumed  to  intend  the  necessary  consequence  of  his  acts, 
so  that  when  a  wrong  act  is  committed  its  guilty  intent  may 
commonly  be  inferred — it  is,  nevertheless,  proper  to  state  the 
intention  of  the  party  in  the  charge  as  an  ingredient  of  his 
offence.  Knowledge  and  intent  are  usually  necessary  to  con- 
stitute crime,  and,  when  material,  ought  to  be  averred  in  the 
charge. 

Sec.  176.     o.   Written  instrument .<< : 

Where  written  instruments  constitute  the  gist  of  the  offence, 
they  should  be  set  out  in  words  and  figures.     It  is 

.  "      ,  Wrill.n!,,. 

not  necessary,  however,  in  such  cases  to  insert  the  Mn.n    t. 
vignettes,  letters,  or  figures  in   the   margin,  as  they 
are  no  part  of  the  instrument.     When   it  becomes  ncccssarj' 
to  set  forth  any  writing,  it  is  usually  preceded  by  the  words 
"to    the    t^nor   following,"  or  "in   these   woixls,"  or  "in    the 

•  DeHut. 


120  .Ti  nr.E  advocate's  vade  meccm. 

words  and  figures  followin<T."  The  words  ••  in  manner  and 
fornj  Ibllowing"  do  not  jtrofess  to  give  more  ilnm  the  sub- 
stance. Tenor  means  an  exact  copy.  Purport  implies  the  sub- 
stance of  tlie  instrument  as  read  on  its  face.* 

No  part  of  a  charge,  it  is  said,  should  be  in  figures,  except 
Not  to  i.e      ^vhcre  it  becomes  necessary  to  set  out  some  writing 

K"r<"<.  ^j.  ifistj-unient  containing  them.  And  where  partic- 
ular words  are  material  to  the  substance  of  the  charge,  they 
should  be  jiarticularly  set  forth;  or  when  this  is  inexpedient 
or  iiupracticalije.  tlie  words  employed  slionid  be  averred  to  be 
of  the  like  meaning  aiul  import  with  those  on  which  the 
charge  is  based. f 

Skc.  177.     0.    Techiiiad  firms,  and  other  irords: 

J^anguage  is  to  be  lairly  construed,  according  to  its  ordinaiy 
Tpchnirai  acccptatiou  iu  tlic  counti'v.  If  tei/hiiical  terms  are 
employed,  they  should  be  regardetl  in  their  technical 
sense;  and  if  terms  of  a  doubtful  meaning  occur,  thQ,y  should 
be  so  construed  as  to  be  consistent  with  the  general  scope  and 
intent  of  tlie  subject.  Tiuis,  says  De  Hart,  somebinles  "  the 
law  has  adopted  certain  expressions  to  show  the  intention 
with  which  an  offence  is  committed  ;  and  in  such  cases  the 
intention  must  be  expressed  by  the  technical  word  prescribed, 
and  no  olhei*  —  lliiis.  for  instance,  tlie  tifteenth  (15)  Article  of 
war  says:  "Every  officer  who  shall  knowingly  make  a  false 
muster  of  man  or  horse;  and  every  officer  or  commissary  of 
musters  who  shall  willingl}'  sign,  direct,  or  allow  the  signing, 
etc.,  etc.,  shall  etc.,  bo  cashiered."  Thus,  a  charge  exhibited 
against  an  officer  for  making  a  false  muster  must  be  laid  to 
have  been  done  '■'■  Unowinijhj ;"  and  for  signing  a  false  muster 
roll,  to  have  been  done  '^^  willinglij."  Tiie  words  ^^  vnifini/"  and 
"sedition"  are  tecimical  terms,  jiurel}',  when  a|)pli('(l  to  mili- 
tary otTences,  and  can  only  be  used  and  understood  according 


*  Wharton's  Criminul  Law.  fDellart. 


OF    MILITARY    TRIALS    AND    THEIR    INCIDENTS.  121 

to  tlic  tixcd  acceptation  of  tliem,  detcrmiued  by  legal  prece- 
dents, and  the  customs  of  war." 

Sec.  178.     When  a  lartfcr  punishment  is  by  law  annexed  to 
The  commission  of  any  offence  than  mijrlit  otherwise 

*'  "  DfTrncp     to 

1)0  awarded,  in   order  to  make  the  offendinfj  party     !"'  '"•"";«<"' 

'  ~     I  •'        in  wiirils  of 

liable  it  must  be  expressly  charged  that  such  offence  *''"  '"^' 
was  committed  under  the  circumstances  contemplated  Ijy  law. 
Thus,  offences  against  an  "officer  in  the  execution  of  his  otfice," 
specified  in  the  0th  Article  of  war,  must  bo  charged  as  having 
been  so  committed.  So,  drunkenness,  if  charged  under  the  4."»th 
Article,  must  be  laid  in  the  charge  as  drunkenness  o)i  duty, 
which  here  is  the  gist  of  the  offence,  and  the  particular  duty 
should  also  be  set  forth.*  The  same  rule  is  to  be  observed  as 
to  offences  created  by  statute.  The  charge  in  all  such  cases 
must  represent  the  offence  or  delinquency  to  have  occurred 
under  the  particular  circumstances  designated  in  the  law,  as  in 
the  ;32d  Article  of  war:  the  '-misbehavior"  must  be  '^he/ore  the 
enemy,"  and  the  "quitting  of  post  or  colors"  must  be  with  a 
view  to  ^' phinder,"  etc.  Hence,  in  framing  the  charge,  the 
intention  of  the  delinquent  must  be  set  out  in  the  words  of 
the  law. 

Sec.  171*.     The  9lHh  Article  of  war  provides  that  "all  crimes 
not  capital,  and  all  disorders  and  neglects  which  offi- 

"  ftm-iirnn  to 

ccrs  and  soldiers  may  be  guilty  of,  to  the  prejudice  of  ^^^; „'/''*J^" 
good  order  and  military  discipline,  though  not  men-  mimary""'* 
tioned  in  the  Articles,  arc  to  be  taken  cognizance  of  '"''^ '"'• 
by  a  general  court  martial,  according  to  the  nature  and  de- 
gree of  the  ofiTcnce,  and  punished  at  their  discretion."  In  this 
connection  it  has  been  remarked,  that  "it  is  not  desirable  to 
specify  the  offence  as  committed  in  breach  of  a  particular 
Article  of  war.  In  cases  where  the  offence  comes  within  a 
particular  enactment,  it  should  be  set  forth  in  the  tcrm»  used 

•  D*  Hart,  i97. 


122  jTDfiK  advocate's  vade  mecum. 

therein;  hiil  where  the  allei^ed  offence  is  a  disorder  or  iieijlect 
not  specifically  j^rovided  for,  it  must  bo  changed  ''as  conduct 
to  the  prejudice  of  good  order  and  military  discipline." 

Skc.  ISO.  7.  Lastly:  Duplicity,  or  double  statements,  should  be 
avoided : 

Any  ((Hint  which  contains  charges  of  two  distinct  offences 
is  defective.*  Thus,  it  would  be  improper  to  embrace  in  any 
one  specification  a  charge  of  a  caj)ital  offence  and  of  drunken- 
ness, or  any  other  crime.  The  statement  of  the  crime  may  be 
\'liritd  in  terms  in  different  specifications  of  the  same  charge, 
80  as  better  to  meet  the  evidence;  but  they  should  be  consist- 
ent, and  never  embrace  in  any  single  s])ecificalion  more  than 
one  distinct  offence. 

Sec.  isi.  Jn  conchiding  this  bruncli  of  the  subject,  we  may 
observe  tiiat  it  is  a  general  I'liie  that  the  special  mat- 

Speci.ll  mat-  r.      i  •  i  i  i    i  .        i  •    i  i 

ters.  how  u.   ter  of  tlic  charge  slioukl  be  set  lortli  with  such  cer- 

be  cliurged. 

tainty  that  the  offence  may  judiciallv  a]ipear  before 
the  court.f  "  Certainty  and  verity,"  said  Lord  Coke,  should 
appear  in  every  accusation.  And  a  distinguished  judge|  of  the 
present  age,  remarks :  "  The  law  secures  to  every  man  who 
is  brought  to  trial  on  a  charge  of  crime  that  the  acts  which 
constitute  his  alleged  guilt  shall  be  set  forth  with  reasonable 
certainty  in  tiie  indictment  wliicii  he  is  called  upon  to  |)leail  to. 
This  is  his  personal  right,  indispensable  to  enable  him  to 
traverse  the  facts,  if  ho  believes  them  to  be  untruly  charged; 
to  deny  their  asserted  legal  bearing,  if  in  his  juilgment  they  do 
not  ostaltlisii  the  crime  iin]mtiMl  to  liini;  or  to  admit  at  onee  the 
facts  and  the  conclusion  from  them,  if  he  be  conscious  of  guilt. 
It  is  ira])ortant  for  his  protection,  also,  in  case  he  should  be  a 
second  time  charged  for  the  same  offence,  that  there  should  be 
no  iiiicertaint\'  as  to  that  for  whieh  lie  was  tried  beloi'e.  And 
beside  all  this,  which  may  be  sujiposed  to  regard  the  accused 

*  Wharton'8  C.  L.,  192.  f  Wharton's  C.  L.  %  Judge  Kaue. 


OF    MILTTARV    THIAT.S    AND    THKIR    INCIDENTS.  123 

alone,  it  is  necessary  for  the  proper  action  and  justification  of 
the  court  tliat  it  should  clearly  appear,  from  facts  patent  on 
the  record,  tliat  a  specific,  legally  defined  crime  has  been  com- 
mitted, for  wiiich  sentence  is  to  be  awarded  according  to  the 
laws  that  apply  to  it." 

Sec.  182.  II.  We  are  now  to  consider  certain  subjects  which 
may  be  regarded  as  preliminary  to  the  regular  trial  by  a  court 
martial.  "  Whenever  any  officer  shall  be  charged  with  crime, 
he  shall  be  arrested,  and  confined  to  his  barracks,  quarters,  or 
tent,  and  deprived  of  his  sword  by  the  commanding  officer." 
See  I'lth  Article  of  War. 

The  78th  Article  of  war  directs  that  "  non-commissioned 
officers  and    soldiers,  charged  with  crimes,  shall   be 

Arrest  of  offl- 

confined  until  tried  by  a  court  martial,  or  released  by  cers  and  »oi- 
proper  authority."  But,  as  if  to  guard  against  any 
abuse  or  arbitrary  exertion  of  power,  the  79th  Article  immedi- 
atel}'  adds :  "  No  ofl^icer  or  soldier  who  shall  be  put  in  arrest 
shall  continue  in  confinement  more  than  eight  daj's,  or  until 
such  time  as  a  court  martial  can  be  assembled."  In  the  same 
spirit,  the  80th  Article  declares  that  "  no  officer  commanding  a 
guard,  or  provost  marshal,  shall  refuse  to  receive  or  keej)  any 
prisoner  committed  to  his  charge  by  an  oflScer  belonging  to  the 
forces  of  the  Confederate  States,  provided  the  officer  commit- 
ting shall,  at  the  same  time,  deliver  an  account  in  writing, 
signed  by  himself,  of  the  crime  of  which  the  said  prisoner  is 
charged."  At  the  same  time,  the  81st  Article  declares  that  no 
"  ofllicer  commanding  a  guard,  or  provost  marshal,  shall  pre- 
sume U)  release  any  person  committed  to  his  charge  without 
prc»per  authority  for  so  doing." 

The  general  regulations  ol  the  army  with  reference  to  this 
subject   have   provided   that   prisoners  under  guard   „ 
without  written  charijes  shall  be  released  by  the  officer  ii.";',^,',,,^"''^ 
of  the  d.iy  at  guard  mounting,  unless  otherwiwi  <»r-  ''  *'*"*■ 
dcred  b}*  the  commanding  officer,  who  in  his  discretion  may 


124  JUDGE    advocate's    VADF,    MECIM. 

enlartjo  the  limits  of  any  officer  in  arrest,  on  Ins  own  applica- 
tion. 

TliiiR  it  will  he  observed  that  while  on  the  one  hand  the  law 
has  amply  provided  for  the  arrest  and  safe  keepin-^  of  militar}' 
offendei*s.  it  has  on  the  other  taken  care  that  no  undue  rii^or 
or  oppression  shall  bo  exercised  against  thoni.  For.  hesido 
the  special  restrictions  of  the  Articles  of  war,  a  discretion  is 
conferred  on  the  commandinir  officer  who  ma}'  even,  in  a  pro- 
per ease,  release  the  prisoner  before  the  exj)ii'ation  of  "  eii^ht 
days." 

Skc.  183.  It  has  been  made  a  question  whether,  if  a  ])ri8- 
QiK-8tion  on  ^"<'''  '•''  eommittcd  to  the  officer  of  the  jj^uard  uu't/iouf 
tie  Bii.ject.  ^i^j^ifff^j^  charges  or  statements  as  to  the  cause  of  the 
arrest,  the  officer  is  bound  to  receive  such  ])risoner.  It  is  said 
the  English  rule  is  in  favor  of  the  oblij^ation  to  receive  the 
prisoner  under  any  circumstances.  Perhaps  the  strict  reading 
of  the  80th  Article  of  war  would  not  require  this  to  be  done 
unless  the  cause  of  arrest  is  given  in — but  as  there  might  exist 
reasons  why  (liis  could  not  lie  done  at  tlie  time,  and  injury  to 
the  service  might  result  in  a  refusal  to  receive  the  prisoner, 
and  more  especially  as  the  officer  of  the  day  is  required  to 
release  all  ])risoMers  confined  without  written  charges,  the 
better  ojiinion  is  that  all  sii(!i  olijcctions  ought  to  be  waived 
by  the  officer  commanding  the  guard.  "'So  far,"  says  Be  Hart, 
"as  any  personal  responsibility  maj'  attach  to  his  act,  he  ma}' 
exercise  a  becoming  ]irudence,  and  satisfy  himself  of  the  char- 
acter of  liim  who  coniMiits  and  of  hiiu  cominilted;  that  is, 
whether  the  one  is  authorized  so  to  act.  and  the  other  amena- 
ble to  such,  or  militai-y  authority.  It  is  a  safe  rule,  then, 
which  ought  to  be  obsei'ved,  that  whenever  a  prisoner  thus 
offered  is  amenable  to  military  law,  nnd  the  officer  confining 
him  is  known,  and  responsible,  the  officer  commanding-  a 
guard,  or  provost  marshal  should  invariably  receive  aiul  keep 
in  custody  the  prisoner  so  presented." 


OF    MILIT.AUV    TRIALS    AND    THKIR    INCIDENTS.  125 

Sec.  1-'^4.     WIhti  an  officer  \h  placed  in  arrest,  it  is  regarded 
as  a  broach   ol'  discipline  to   pass  beyond  the  limits       „      ,    , 

'  ^  •^  Broach  of 

assigned  liiin.  If  tlie  crime  alleged  against  him  is  '""rest, 
of  so  serious  a  nature  as  to  induce  any  attempt  to  escape,  he 
should  be  j)laced  in  confinemoMt,  or  at  least  in  charge  of  a 
guard.  It  is  moreover  directed  by  the  vVrticles  of  war  that 
the  commanding  officer  sliall  deprive  the  partj'  arrested  of  his 
sword.  This  is  not  done  lormally,  but  the  announcement  of 
the  proper  agent  of  such  commanding  officer  to  the  subordi- 
nate that  he  is  placed  in  arrest  deprives  him  of  tlie  right  to 
wear  arms,  or  to  exercise  any  official  function,  for  the  time 
being.* 

The  Articles  of  war  do  not  prescribe  an}-  particular  mode  or 
place  of  confinement  for  non-commissioned  officers  or  „   ^ 

■*  Con  n  II  em  en  t, 

soldiers;  but  the  regulations  of  the  army  direct  as  to  '"""'p'*^*"'- 
the  first,  that  they  shall  be  kept  '-in  quarters  or  other  limits," 
except  where  escape  is  anticipated;  and  as  to  the  latter,  it  is 
usual  to  confine  them  in  the  guard-house  or  prison-room.  Xo 
officer  can  be  relieved  from  arrest  except  in  the  regular  and 
legally  appointed  manner,  that  is,  by  the  authoi'ity  imposing 
.such  arrest,  or  by  a  superior  officer. 

Sec.  185.     What   constitutes   a    breach  of  arrest    has    been 
sometimes  matter  of  argument  and   doubt.     The  of- 
fence is  of  a  very  grave  character,  and  subjects  the       bre-vhof 

arrrnil. 

guilty  parly  to  serious  consequences;  it  is  therefore 
important  tliat  it  should  be  well  understood  and  defined.  And 
thero  ought  to  be,  indeed,  no  difficulty  in  this,  for  liowcver  cer- 
tain acts  or  conduct  of  an  officer  under  arrest,  appearing  to 
exercise  the  privileges  of  his  commission,  such  as  passing  an 
order,  wearing  his  sword,  or  visiting  his  superior,  are  U>  be 
treated,  whether  as  mere  improprieties,  liable  to  reprimand 
and  censure,  or  as  violations  of  some  special  regulation,  and,  as 


126  JUDGE  advocate's  vade  mecum. 

such,  to  be  duly  punished,  they  do  not,  of  themselves,  consti- 
tute the  specific  offence  here  spoken  of.  That  only  should  be 
regarded  as  a  breach  of  arrest,  whicli  cdnics  within  the  terms 
of  the  law.  The  consequences  of  this  crime  are  too  serious  to 
justif}'  any  strained  or  enlarged  application  of  it.s  meaning. 
The  77th  Article,  which  directs  the  arrest  of  an  officer  charged 
witli  crime,  as  already  pointed  out,  clearly-  distinguishes  the 
breach  of  that  arrest  to  bo  the  leaving  his  confinement  before  he 
is  set  at  liberty  by  his  commanding  ofiicer,  or  by  a  superior  ofiicer. 
There  can  be  no  reason  or  authority  for  changing  or  enlarging 
this  definition  so  as  to  embrace  other  and  different  offences. 
On  the  contrary,  the  law  being  penal,  is  to  be  strictly  con- 
strued. 

Sec.  18G.  "The  27th  Article  of  war  confers  extraoniinary 
wh  po^^'61*'^  on  officers  of  c\xMy  grade  and  degree  for  the 
may  be.  supprcssiou  of  quarrcls,  frays,  and  disorders,  and  in 
cases  contemplated  by  the  Article,  a  senior  is  liable  to  arrest 
by  his  junior,  and  the  law  requires  on  the  part  of  all  persons 
subjecting  themselves  to  the  exercise  of  siuh  :uitliorit.y  of  the 
junior,  or  other,  to  give  the  most  implicit  obedience  to  the 
same.  This  is  a  wholesome  check  to  the  exasperation  of  feel- 
ing, and  tumult  of  passion,  which  might,  in  some  circum- 
stances, be  exhibited  by  mc-n  wiiost'  i-anU,  3'ears,  and  services 
would  operate  as  a  very  hurtful  example  to  others,  j'outhful 
and  inexi)erienccd,  and,  therefore,  a  strong  motive  to  sup])ress 
such  violence  was  necessary  to  be  ottered,  which  should  at  the 
same  time  appeal  to  liieir  ])rofo8sional  interests  and  jjorsonal 
pride."* 

Skc.  187.  The  law  has  wisely  provided  a  means  for  the  re- 
dress of  grievances  on  the  ])art  of  inferiors  who  ma}' 
cere.  redrcKs  considcr  thcmsolves  wronged  by  those  wlio  are  placed 

for  wroiiRH  of. 

in   command   over   them.     Thus,  the  ;>4Mi   Article   of 
*De  Hurt. 


OF    MILITARY    TRIALS    AND    THEIR    INCIDENTS.  127 

war  provides  ''  tTiat  if  any  oflicor  shall  tliinlc  liiiu.sclf  wronged 
by  his  colonel  or  the  commanding  officer  of  his  regiment,  and 
shall,  ujion  due  application  being  made  to  him,  l)c  refused  re- 
dress, he  may  complain  to  the  general  commanding  the  state 
or  territory  where  such  regiment  shall  be  stationed,  in  order  to 
obtain  Justice,  who  is  hereby  required  to  examine  into  said 
complaint,  and  take  proper  measures  for  redressing  the  wrong 
complained  of,  and  transmit,  as  soon  as  possible,  to  the  Depart- 
ment of  War  a  true  state  of  such  com])laint,  with  the  proceed- 
ings had  thereon." 

This  Article  is  in  its  nature  remedial,  and  is,  therefore,  to 
receive  a  liberal   interpretation.     Its  benefits  are  to 

1  1     J  rr>  n      \  Cunstniction 

be  extended  to  every  oinccr  oi    the  army,  whether  of  ;}4th  Arti- 
cle of  war. 

under  a  regimental  organization  or  not.  It  " presents 
to  each  iuferior  officer  a  means  for  the  redress  of  wrongs  com- 
mitted b}'  his  superiors,"  and  is  not  to  be  confined  in  its  literal 
meaning,  as  might  be  inferred,  to  wrongs  committed  by  "a 
colonel  or  commanding  officer  of  a  regiment;"  tor  in  a  just  and 
liberal  construction  of  the  law,  ''the  particular  grade  of  the 
person  who  inflicts  the  injury,  be  he  a  regimental  or  a  general 
officer,  cannot  affect  the  means  or  the  right  of  the  sufferer  to 
seek  redress. '*  The  particular  mode  of  this  redress  is  also 
pointed  out  in  the  Article  of  war.  The  "proper  measures"  are 
required  to  lie  adopted  by  the  commanding  general,  where  re- 
dress has  biren  refused  by  the  colonel  or  regimental  officer,  and 
proceedings  reported  to  the  War  Department.  No  form  of 
proceeding  is  prescribed,  and  it  would  appear  that  the  duty  of 
the  general  officer  is  merely  to  examine  and  report  the  facts  as 
directed  in  the  Artir-le  of  war. 

In  addition  to  the  remedies  provided  in  the  Article  just 
quoted,  the  ?thih  Article  of  war  j»rovido«  the  means  of  re- 
dress for  "  any  inferior  officer  or  soldier  who  shall  think  liim- 

•  De  Hart. 


128  JUDGE  advocate's  vade  mecum. 

self  wroni^od  by  his  captain,  or  other  otticPr."  Unlike  tlie 
remedy  proposed  in  the  jtreeediiii;  Article,  the  eoniinimdinif 
officer  is  required  to  summon  a  reijimental  court  martial  to  do 
justice  to  the  complainant  —  from  which  either  party  may  aj)- 
pcal  to  a  general  court  martial.* 

Sec.  188.     We  have  in  previous  chapters  discussed  the  du- 
ties of  the  Judge  Advocate  in  connection  with  the 

Prisoner — 

righuofro-  cliargcs  presented,  the  propriety  of  reading  them  to 
ignorant  ])crsons  when  accused,  summoning  wit- 
nesses, and  rendering  them  such  other  assistance  as  ma}-  be 
consistent  with  their  position,  previous  to  the  trial.  Wo  have 
also  stated  the  general  practice  of  furnishing  with  the  charges 
a  list  of  the  witnesses  called  for  their  sujiport,  though  this  is 
not  conceded  as  a  right  so  much  as  a  favor  to  the  jiiMsouer. 
...     .,  It  is,  however,  itroner  that  he  on  his  i):irt  sljould  fur- 

Uiti  wit-  '  '11  I 

iKMi».  jjj^ij  ^jj^  Judge  Advocate  the  names  of  all  witnesses 

he  requires;  and  should  that  officer  decline  to  summon  them, 
as  for  satisfactory  reasons  he  may  do,  it  is  yet  the  right  of  the 
prisoner  to  have  submitted  to  the  coui-t  through  the  Judge 
Advocate  an  application  to  direct  the  summoning  of  the  wit- 
nesses thus  refused.  This  application  may  be  supported  by 
any  reasons  the  prisoner  has  assigned,  and  should  be  commu- 
nicated by  the  Judge  Advocate  to  the  court. 

Sec.  LSI*.     Whether  a  court  martial  can  call  any  witness  not 
produced    by   the   prosecution    or   deienco,  Do   Hart 

Who  court       i  ''  I  ' 

Mini  ixam-     says,  has  been  made  a  question.     The  utmost,  ho  re- 

ino  lu  wit-  •'     '  1  ' 

"'"'■''■  marks,  •'  which  according  to  military  writers  has  as 

yet  been  conceded  on  this  point,  is  to  allow  a  court  to  examine 
an  individual  who  has  been  alluded  to  in  the  course  of  the 
trial,  and  whose  testimony  may  elucidate  some  point  referred 
to."  lie  then  declares  his  own  o'pinion  that  to  permit  such  a 
practice   would   be   a  •' vi(;hitinii   of  the  principle   uj)on   which 


*  .See  tilU'.  llfJrcBs  of  wrongs. 


OF    MILTTARY    TRIALS    AND    THEIR    INCIDENTS.  120 

depends  the  iinpjirtial  administration  of  justice."  It  is  diffi- 
cult to  conjecture  liow  such  a  question  could  well  be  raised. 
The  court  are  sworn  to  decide,  accordini!;  to  the  evidence,  the 
matter  before  them;  the}*  are  jurors  only,  and  not  parties  to 
the  trial.  To  allow  them  to  "  originate  evidence,"  or  of  their 
own  motion  to  introduce  witnesses,  would  be  contrary'  to  all 
precedents  in  other  courts,  and  a  manifest  infringement  of  the 
rules  of  equity.  No  officer  can  of  right  demand  a  court  martial, 
cither  for  himself  or  another.  If  in  possession  of  facts  likely 
to  render  a  trial  necessarj''  in  any  case,  he  can  only  report 
them,  or  present  them  in  the  shape  of  charges  to  the  com- 
manding general  or  other  officer  capable  of  ordering  a  court 
martial,  who  is  to  judge  of  its  expediency  or  necessity. 

Sec.  190.  The  regular  hours  for  the  transaction  of  business 
by  a  court  martial  are  fixed,  as  has  been  before  stated,  be- 
tween eight  in  the  morning  and  three  in  the  afternoon;  and  no 
proceedings  can  be  legally  had  at  other  hours,  except  when  in 
cases  requiring  "immediate  example"  it  is  otherwise  ordered 
by  the  authorit}'  convening  the  court. 

Sec.  IIU.  II.  Of  the  proceedings  in  the  trial,  and  its  inci- 
dents : 

In  treating  this  subject,  some  degree  of  repetition  must  be 
expected  in  regard  to  certain  general  principles  anfl  rules 
which  arc  of  common  use  and  application,  and  to  which  rc- 
(•urrcnce  cannot  therefore  be  avoided.  As  in  other  judicial 
bodies,  so  in  military  courts  there  arc  certain  formalities  and 
rules,  which,  though  not  written  out.  are  yet  well  understood 
and  carefully  observed. 

Thus,  order  and  decorum  must  at  ail  times  bo  maintained; 
the  court  invariably  deliberates  with  closc<i  doors; 
and  the  party  addressing  the  court  should  always  mi.*  on 
respectfully  rise  from  his  seat.  The  prisoner,  if  a 
commissioned  officer,  should  be  addressed  by  his  name  an<J 
title,  and  is  attended  b^'  a  guard  or  an  officer,  as  his  rank  and 
9 


130  jL'or.K  advocate's  vade  mecum. 

otlu'i-  circuinstances  require.  A  giuird  is  also  posted  :it  the 
door  of  the  court,  and  tlie  necessary  number  of  orderlies  are 
detailetl  as  messengers  to  aid  the  Judge  Advocate  in  sum- 
moning witnesses,  conveying  notices,  and  for  other  purposes. 

The  momljcrs  of  the  court  take  their  ])laccs,  as  before  ex- 
„  ,.  ,  plained,  according  to  their  rank :  and  when  the  re- 
""'■  quisite  preliminaries  are  arranged,  the  court    is  for- 

mally opened  and  business  is  conimenced. 

Sec.  102.  The  prisoner  and  witnesses  arc  then  called  or 
PriBoner  brought  into  court.  If  a  rescue  or  escape  is  appre- 
in court.  bended,  to  prevent  which  the  guard  is  insufficient, 
fetters  may  be  employed,  but  not  otherwise.  The  prisoner 
should  be  treated  with  decent  respect  and  kindness,  and  be 
allowed  a  seat.  The  name  of  each  member  of  the  court  is 
next  called  l)y  the  Judge  Advocate,  according  to  seniority; 
after  which,  the  order  assembling  the  court  is  read  aloud. 

Sec.  193.      The  Judge  Advocate  now  asks  the  prisoner    if 

he  has  ol)jection8  to  an}'  member  of  the  court  ])res- 

tuiiiiy  to       ent  —  iiaimng  tliom  m  order — (m*  any  cause  ot  chal- 

challeiige. 

lenge. 
Peremptory   challenges  are  not  admitted   of  any  sort ;  but 
cause   must   always   be  alleijed,  and    this   before   the 

Peremptory  •'  "       ' 

notuiiowe.1.  oiiti,  it,  ji,inii,,i(^tered.*  The  reasons  assigned  for  the 
challenge,  ami  the  n-piy  of  the  Judge  Advocate,  ought  to  be 
entered  on  the  record.  The  court  is  then  cleared  for  delibera- 
tion, and  the  challenged  member  withdraws  until  the  decision 
is  announced.  If  it  is  sustained,  the  member  retires  altogether 
and  iIk'  sii|)i'riininerary,  slutuld  there  be  one,  supplies  his 
place;  but  if  the  challenge  is  not  sustained,  the  member  re- 
sumes his  seat.     A  Judge  Advocate  is  never  the  sub- 

.Jiicl(;i<  All-         .  r.      1       11  II  •      1-  • 

vocal.!  Tiot     ject  of  challenge,  as  he  lias  no  judicative  voice. 

-chitlleiiKed. 

The  technical   rules  and  distinctions,  and   the  great 

1 

*  Wharton's  Crim.  Law,  971. 


OF    MILTTARY    TRIALS    AND    TIIElR    TNCIDKNTS.  131 

strictness  usually  ol)sorved  by  courts  of  law  respectin*;  chal- 
lenges, do  not  obtain  before  military  tribunals,  and  accordingly 
it  is  said  there  should  be  the  most  liberal  indulgence  conceded 
to  the  wishes  and  even  prejudices  of  the  prisoner,  Avhere  this 
can  be  done  consistently  with  the  public  interests. 

Sec.  104.  It  has  been  heretofore  shown  that  although 
courts   martial  are   required   by  law  to  take  a  pre- 

^  ''  '  Cdurt  may 

scribed  oath  before  they  can  Icjrally  exercise  any  ^t",'!''  "" 
judicial  authority,  they  yet  possess  before  being  '"''"■^* "'^"'• 
sworn,  wherever  the  requisite  number  are  i)resent,  certain 
deliberative  powers  necessary  for  their  organization  and  the 
preservation  of  order.  Hence  thc}^  are  competent  to  decide 
upon  the  exception  or  challenge  raised  against  any  member, 
and  such  minor  questions  as  do  not  involve  the  exercise  of 
judicial  powers. 

A  court  martial  cannot  examine  witnesses  on  oath,  prior  to 
its  being  regularly  organized  and  sworn  as  required  by  law. 
It  can  therefore  only  decide  the  challenge  upon  a  considera- 
tion of  the  statements  made  informally  b\'  the  j>artics  con- 
cerm^d  —  that  is,  the  objector  (through  the  Judge  Advocate) 
and  the  challenged  officer — and  also  of  witnesses  not  under 
oath. 

The  right  of  challenge  is  reciprocal,  and  the  .ludge  Advo- 
cate ought  to  exercise  it  on  a  proper  occasion. 

Skc.  Kt.T  It  has  just  been  remarked  above  that  peremptory 
challenffcs    arc    not   allowed.       What,    then,  are    the 

■  '  '  What  arc 

proper  grounds  of  challenge  before  a  court  martial  ?         M>efiaJ 

'         *  "  tj  icroiinclK  of 

It  will  be  unnecessary  to  enter  into  the  numerous     •=»»*"^"«* 
distinctions  and  niceties  of  the  law  on  this  subject,  or  t-o  note 
the  various  kinds  of  challenge  whi<h  it  recognizes.     All  that 
need  l»c  said  here  may  be  embraced  under  two  heads: 

1.  Challenges  on  grounds  which  diMjualify  a  member /or  rea- 
,Rons  hryovfi  his  control,  such  aJ<  relntinujiihip,  or  prrvio^is 
connection  irifh  the  subject  nuilter,  or  interest.      These 


1"2  JUDOK    ADVOCATl/s    VADK    MErUM. 

may  bo  called  pn'nn'p<if  rhcilhh'iix.  as  tlioy  ]irosciit  pr'"ui  /",;,;> 
causes  for  objection. 

2.  Challenges  on  </rounds  relating  to  the  previous  conduct  of  a 
tncmbrr,  such   as  partiality,  prejudice,  or  malice,  etc.. 

T'l  flic  fivor.         ,   .    ,  11. 

wliich  may  be  desigriated  as  challenges  to  the  favor. 
Under  one  or  the  other  of  these  divisions  it  is  believed  all 
exceptions  whicli  urc  allowed  by  courts  niarlial  may  be  classi- 
liod. 

Sec.  190.  Under  the  first  bead  may  bo  named  objections 
which  arise  from  the  fact  that,  by  conviction,  the  prisoner 
would  forfeit  his  commission,  wbicb  would  i-esiill  in  the  pro- 
motion of  the  party  challenged.  This,  it  is  conceived,  is  a 
clear  case  of  interest  in  the  conviction  of  the  accused.  So  that 
the  member  is  a  relative,  or  of  the  blood  or  kindred  of  the 
prosecutor  or  prisoner,  is  also  said  to  bo  good  cause  of  chal- 
lenge. 

Previous  connection  willi  the  subject  matter  is  good  ground 
of  objection  to  a  member.  Thus  it  is  said  an  officer  who  has 
set  on  a  court  of  incpiiry  to  investigate  the  subject  of  the 
charge  is  ineligible  as  a  member  of  the  court  martial.  So, 
also,  having  been  a  member  of  an  inferior  eoui-t  fi-om  which 
an  appeal  has  been  taken. 

Whether  it  is  good  cause  of  exception  that  a  member  has 
set  on  another  court  where  the  same  matters  have  been  con- 
sidered, is  3'et  undecided.  It  is  certainly  advisable  not  to 
select  such  a  member  if  another  can  be  detailed,  though  De 
Hart  expresses  the  opinion  that  "unless  there  be  something 
pcculiur  in  tin'  investigation  ])reviously  bad,  and  by  wliieli  a 
question  of  the  prisoner's  guilt  may  have  boon  agitated,  such 
objection  against  a  inember  of  a  court  martial  would  not  be 
sustained." 

Skc.  197.  Under  the  second  head,  or  challenges  to  the  favor, 
may  be  named  :  cases  of  interest  in  the  result,  which 

To  the  favor.     ,  .  ,  n  •  i  i 

do  not  involve  pront  or  gain  to  the  member  —  as  in  a 


OF    MILITARY    TRIALS    AND    TUEIR    INCIOKNTS.  133 

cas^c  reported  by  Capttvin  Sininions,  where  the  "  sentence  of 
the  court  was  remitted  from  tlic  circumstance  of  an  officer  be- 
ing a  member  whose  ])roperty  the  prisoner  had  attempted  to 
steal." 

Malice  is  cause  of  objection.  But  though  there  is  no  "pro- 
hibition by  law  or  regulation  to  the  appointment  of  any  jtar- 
ticular  officer  as  a  member  of  a  court  martial,  and  so  it  may 
happen  tliat  officers  bearing  an  objectionable  official  relation 
to  the  prisoner  may  be  named  for  such  dut}',"  yet,  if  an  opin- 
ion has  been  maliciously  declared  unfavorable  to  the  prisoner, 
it  is  good  ground  for  challenge.* 

It  is  a  general  rule  that  the  commanding  officer  of  the  pris- 
oner ought  not  to  sit  on  the  court  which  is  to  try  him.  Ex- 
ceptions to  this  rule  ought  only  to  be  admitted  in  cases  of 
urgent  necessity.  The  reason  of  the  rule  is  stated  to  be  those 
prejudices  which  are  likely  to  arise  "from  previous,  or  imper- 
fect, or  ex  parte  knowledge  of  the  circumstances  inducing  the 
trial." 

It  is  also  said  to  be  «;ood  cause  for  challenije  that  the  mem- 
ber  is  a  material  witness  in  the  case,  and  has  been  summoned 
as  such.  But  if  he  is  to  speak  of  character  onhj,  the  objection 
would  be  ovei'ruled.  In  this  connection  Captain  I)c  Hart 
remarks:  "  Sliould  a  member,  not  having  been  challenged,  and 
after  being  sworn,  be  unexpectedly  called  upon  as  a  material 
witness  in  the  case,  he  is  not  thereby  disqualified  from  flis- 
charging  his  duty  as  a  member  of  the  court,  though  it  might 
prove  better  that  the  character  of  judge  and  witness  were  not 
united.  In  a  fuse  like  this,  where  a  member  is  oallefj  on  to 
testily,  and  the  examination  is  of  sucli  a  character  as  to  exas- 
perate or  irritate  the  feelings  of  the  witness,  it  is  advisable 
that  the  member  should  not  resume  his  seat;  and  if  tlic  num- 
ber jtresent  be  sufficient  to  continue  the  proceedings,  the  court 
may  authorize  his  withdrawal.     In  fact,  it  is  a  safer  rule  that 

•DcHm-L 


134  JUDOE  advocatk's  VA1»F,  mkcum. 

in  every  case  in  which  a  member  happens  to  be  examined  as  a 
material  witness  he  shouhl  \h-  wilhdrawii  Irom  the  court  ;  for 
it  is  certain  that  tlie  facts  to  wliich  he  deposes  must,  to  some 
extent,  be  an  cxi)rcssion  of  liis  opinion  of  tlie  matter  in  issue." 
Sec.  198.  It  is  no  ground  of  objection  to  a  member  that  he 
belon-fs  to  the  same  conii):u)V  or  rci'inient  as  the  ac- 

Wlint    no  '^  I         .  !^ 

Kroiin.i.pf.  cused ;  thouiz;h,  as  just  stated,  the  rehitions  existing 
between  the  ])risoner  and  his  commanding  officer  often  pre- 
sent good  ground  of  exception.  Light  and  unreasonable  ob- 
jections to  members,  it  need  hardly  ho  added,  are  not  to  bo 
countenanced. 

Sec.   100.      The  usual  time  for  challenge  is  before  ari-aign- 
ment  of  the  prisoner,  whose  olnections  are  first  heard 

Time  of  l  '  . 

chaiiongo.  1^^.  |],^,  eourt,  then  those  in  i(  ply.  -Vmi  although  the 
general  rule  is  1o  make  the  challenge  before  the  court  is 
sworn,  yet  it  will  always  consider  any  exception  offered  upon 
good  and  sufficient  grorntda,  discovered  after  the  swearing  of  the 
court.  But  if  the  cause  has  been  ])reviously  known  to  the 
prisoner,  and  the  opportunity  knowingly  waived  by  him,  he 
cannot  afterward  avail  himself  of  it. 

Sec.  200.     ''  When  practicable,  all  challenges  should  be  ad- 
mitted.    It  is  not  onlv  right  to  be  as  mild  as  possible 

Should  Ik- 111-  •  '^ 

lowed, wi.«i..  t(,\y.,,.,|  (1,^.  prisoner,  but  it  is  right  lo  let  the  ])ublic 
and  the  prisoner  see  that  such  is  the  case;  l)esitles,  no  oHicer 
who  has  lieeii  challenged  likes  to  sit  as  a  member  of  a  court, 
and  it  is  hai-d  to  oblige  him  so  to  do  unless  the  good  of  the 
service  demands  it."  Commenting  on  lliis  o])inion  of  an  I'mg- 
lish  authority,*  De  Hart  declares  the  ruK-  to  he  a  good  one 
where  it  is  possible,  eon.sistently  with  the  public  interests,  to 
observe  it.  And  he  adds,  "as  courts  martial  aie  not  strictly 
bound  to  the  observance  of  proof  in  the  cause  of  a  challenge, 
such  question  must  be  left  for  determination  to  the  sense  of 
propriety  or  sound  judgment  of  the  court  themselves." 

•Sir  C.  J.  Napier. 


OF    MILITARY    TRIALS    AND    TIIKIR    TNOIDKNTS.  135 

Skc.  201.  Tlic  ijreat  cardinal  principle  wliicli  llio  court 
should    koci)  in   view  in   deciding    on    tlic  sufficiency 

'  '^  Cardinal 

of  any  ground  of  challenge  is  absolute  indifference  "^^I'XlXXt 
and  impartioUty  on  the  part  of  its  members.  Tliis 
point  should  'oc  obtained  as  far  as  possible;  and  taking  into 
view  the  ordinary  principles  of  human  motive  and  action,  the 
good  sense  of  the  court  will  generally  enable  it  to  arrive 
at  a  correct  conclusion.  It  is  to  be  observed,  however,  that 
while  considerations  of  leniency  toward  the  prisoner  in  this 
connection  are  to  be  encouraged  and  commended,  they  ought 
to  be  entertained  only  in  a  just  and  equitable  subordination  to 
the  public  interests. 

Sec.  202.  Proofs  cannot  alwaj's  be  obtained  to  substantiate 
an  alleged  ground  of  challenge;  and  therefore,  acting  on  cer- 
tain ideas  of  military  pride  and  honor,  the  practice  has  to 
some  extent  obtained  of  admitting  the  challenge  where  the 
court  has  confidence  in  the  statements  made,  or  good  reasons 
for  believing  them. 

Sec.  203.  A  challenge  to  the  array  is  a  peremptory  objection 
to  the  whole  court.  The  phrase  is  derived  from  the 
practice  which  obtains  in  certain  cases  in  courts  of  ""•array. 
law  of  objecting  to  the  whole  jury  as  it  stands  arrayed  in  the 
panel,  or  small  squares  of  parchment  on  which  their  names  are 
written.  Such  a  challenge  is  rarely  called  for  in  military  tri- 
bunals, though  there  may  be  occasions  for  it  in  rases  of  a  want 
of  jurisdiction  in  the  court.  The  cause  of  chalk-ngc,  whatever 
it  may  be,  as  has  been  heretofore  suggested,  shouM  be  pre- 
sented through  the  Judge  Advocate,  by  whom  it  should,  with 
the  decision  of  the  court  thereupon,  be  carefully  recorded  in 
the  proceedings. 

Src.  204.  Of  the  oaths  to  be  administered  to  the  court  and 
Judge   Advocate  we    have    spoken   elsewhere.     It   is 

0»lh.    to. 

only  necessarv  here  to  repeat  that  if  the  fact  of  their      notiz-^joa 
being  regularly  sworn,  as  required  by  the  Articles  of 


136  JUDf.K    ADVOCATKS    VADK    MKCUM. 

war,  does  not  appear  on  the  record,  tl>e  whole  proceedings  will 
1)0  void.  It  is  also  indispensable  that  the  record  show  that  the 
pri>«)ner  was  asked  after  reading  the  order  assembling  the 
court  whether  he  had  objections  to  ntier  to  an}*  of  its  mem- 
bers. Each  case  should  be  tried  separately  where  llie  charges 
are  different. 

Skc.  20").  After  swearing  of  the  court,  and  before  arraign- 
Motion  to  "umt,  is  the  jirojjer  time  for  an}-  aii]»lication  or  motion 
poBtpon.-.  ^^.^j,  ^j^^^  ])ostponement  of  the  trial,  though  these  pro- 
ceedings ai'e  not  strictly  limited  to  any  particulai-  jjcriod.  The 
court  is  the  judge  both  as  to  the  time  and  the  reasons  otVered  in 
support  of  the  ai)plication. 

Skc.  200.  If  delaj'  is  desired  in  the  assi'mbling  of  the  court, 
n^     1  i„      authority  tlierefor  must  be  obtained  from   the    same 

How  delay  •■  4 

source  which  convened  it.  W  lien  it  is  important 
merely  to  suspend  proceedings  for  any  cause,  the  reasons 
assigned  ought  to  be  supported  by  the  affidavit  of  the  appli- 
cant. If  the  ground  is  the  absence  of  a  witness,  the  ))rob- 
ablc  time  of  his  a|>])eai"aiice  should  be  given;  and  in  case  of 
sickness  of  an}'  witness,  it  is  said  a  surgeon  should  state  tho 
facts  by  affidavit,  or  otherwise.  The  protracted  illness  of  the 
prisoner  is  good  groimd  for  dissolving  the  court.  It  is  said  that 
tho  sickness  of  the  prosecutor,  except  in  very  special  cases,  of 
which  the  court  must  judgi',  will  not  Justify  a  suspension  of  the 
trial  be^'ond  a  very  limited  time,  the  presence  of  tho  Judge 
Advocate  being  in  geiu-rul  deemed  sullicicut. 

Skc.  207.     Counsel   is  allowcil  llu^  prisoner,  if  desired,  to  aid 
in   the  defence.      lie  sits  by  the  accused   and   directs 

ConnRcl  to  "^ 

prisniier.  |^j||^  what  questions  U)  ask,  which  are  then  put  by  tho 
Judge  A<lvo('ate  to  the  witness.  Any  ]>oints  td  be  discussed, 
or  (explanations  m:ule,  are  manageil  in  writing  in  the  same 
manner,  for  during  the  proceedings  counsel  is  not  permitted  to 
address  tho  court.  He  may  however  read  to  the  court  a  writ- 
ton  argument  for  tho  defenoo,  and   it   is  customary  to  allow 


OF    MILTTAUY    TRIALS    AND    TRKIR    INCIDENTS.  137 

this.  If  the  person  selected  as  counsel  is  objectionable,  the 
court  may  refuse  to  admit  him,  tlu)n<i;h  this  authority  is  sel- 
dom, and  ouffht  always  to  be  carefully  exercised. 

Skc.  20S.  These  pi'climinaries  beiny;  arranged,  the  .Judge 
Advocate  reads  the  chi,irges  in  full  and  open  court; 

11  •  •  11  •  7       1         T      1  Arrai(;iic(i. 

and  tlie  ]))"is()ncr  is  m  w  tormally  arraigned,  the  Judge 
Advocate  addres(»\)ryif  him  b}-  his  proper  rank  and  name,  as  fol- 
lowii :    "You    have  heard   the  charges  read  preferred   against 
you ;  how  say  you,  are  you  guilty  or  not  guilty  ?" 

Sii:c.  209.  Here  tiie  prisoner  may  stand  mute,  or  refuse  to 
answer;  or  he  may  plead  to  the  crime  charged.  The  usual 
pleas  are:  To  the  jurisdiction  of  the  court;  abatement;  the 
general  issue  of  "  not  rjuilty,'"  or  some  special  plea,  in  bar  of  the 
trial. 

If  the  prisoner  stands  mute,  the  case  is  provided  for  in  the 
0th  Article  of  war,  which  declares  that  "  when  a  prisoner 
arraigned  before  a  general  court  martial  shall  from  obstinacy 
and  deliberate  design  stand  mute,  or  answer  foreign  to  the  pur- 
pose, the  court  may  proceed  to  trial  and  judgment  as  if  the 
prisoner  had  pleaded  not  guilty." 

And  so,  if  the  standing  mute  arise  from  the  inability  only  of 
being  unable  to  articulate,  the  court  niay  proceed  as  though 
the  pl<^a  of  not  guilt}-  had  been  regularly  entered. 

Sec.  210.     Plea  to  the  jurisdiction  of  the  court  : 

The  general  grounds  of  this  plea  are:  that  the  civil  courts 
only  have  cotrnixancc  of  the  crime  allctjed ;  that  a  „,  .  . 
supcnor  court  martial  only  has  jurisdiction  in  the  "Miction. 
case;  that  the  court  assembled  has  been  imjiroperly  consti- 
tuted, either  by  n-ason  of  the  member  or  members,  or  the  au- 
thoritj'  by  which  it  is  ordered  to  assemble. 

iShc.  211.     Plea  in  abatement:  This  is  a  dilatory  plea,  and 
must  be  pleaded  with  exactness.     The  true  name  and     ...^  . 
facts  must  also  be  staled,  to  enable  the  Judge  Advo-     •»^'*"'«''*- 
catc  to  correct  the  error.     But  the  court  may  permit  the  error 


138  JUDGE  advocate's  vade  mecum. 

to  1)1'  amended  on  tlie  dcclnratioii  of  tlic  party,  smd  the  for- 
mality of  a  plea  is  therefore  rarely  resorted  to. 

Skc.  212.  The  plea  of  guilty:  This  admits  the  crime  and 
pi^  J.  facts  charged;  and  sentence  follows,  unless  the  court 
^""■^  sees  fit  to  receive  or  tiic  prison'^r  desires  to  offer  evi- 

dence as  to  the  character  and  degree  of  tho  offence,  which  may 
alwa3S  be  done.  Where  the  prisoner  is  un''"*i\iainted  with  the 
consequences  of  such  a  plea  he  should  be  informed  ;  and  '.t  is 
alway.s  best  to  examine  as  to  the  nature  and  extent  of  the 
crime,  inasmuch  as  mitii^ating  circumstances  may  appear  prop- 
er to  be  considered. 

Sec.  213.  The  plea  of  i\ot  <j>iiltij  puts  in  issue  the  offence 
Qj.^^^^  charged.     Either  part}'  ma}'  under  this  plea  adduce 

^""•^'  evidence  to  j)rove  or  disprove  the  charge,  as  the  case 

maybe;  and  for  this  reason  it  is  the  plea  usuallye  mployed 
where  a  defence  on  the  merits  of  the  case  is  designed. 

Skc.  214.     Special  pleas :   Of  these  there  are  several  — 

1.  The  statute  of  limitations  may  be  regarded  as  a  special 
ploa,  as  the  i)arty  accused  has  the  right  to  pK'a<l  in  his 

Special  pleas:  ,  ,         ' 

Statute  of     defence   that   the  crime  charged   has  occurred  more 

liniitatioiiB. 

than  two  years  before  the  issuing  of  the  order  for  the 
trial — all  trials  for  such  offences  being  prohibited  by  the  88th 
Article  of  war.  According  to  tlie  opinion  of  .Mr.  Wii't,  U.  S. 
Attorney-doneral,  it  is  not  "competent  for  any  individual  to 
waive"  this  provision  or  for  a  court  martial  to  decline,  "even 
on  the  application  of  the  arrested  party,  to  examine  into 
offences  of  more  than  two  years  standing  previous  to  the  or- 
der summoning  the  court,"  unless  the  conditions  of  "absence" 
or  manifest  impediment  appear,  as  r(>(|nij'ed  in  the  Article  of 
war. 

That  the  civil  ccmrts  have  charge  of  the  crime  or  offence, 
and  hence  that  no  <-oiir(  martial  could  assume  jurisdiction  of 
the  questions  involved  during  the  ])endency  of  the  subject 
before  the  civil  authority,  is  a  lawful  impediment  to  an  earlier 


OF    MILITARY    TRIALS    AND    TUKTIl    INCIDENTS.  139 

trial ;  and  therefore  sueli  an  iinjiediment  hs  is  contemplated 
in  the  Article  just  quoted.  "  Until  he  is  discliar«^ed  from  the 
prosecution  pending  before  tlic  civil  tribunal  no  coui'l  martial 
can  be  held  upon  him."*  And  the  court  will  assume  that  some 
manifest  impediment  existed  to  the  trial,  unless  the  contrary  is 
shown. f 

Skc.  215.     2.  Former  acquittaL  or  conr  let  ion  : 

As  the  same  remarks  apply  in  each  of  these  cases,  with  a 
sinfflc  distinction,  they  need  not  be  separated  here. 
An  acquittal,  even  without  the  judgment  of  the  court  i'"""'- 
thereon,  is  a  bar;  but  thi.s  docs  not  necessarily  follow  on  a 
conviction  on  which  the  court  has  pronounced  no  sentence.  Ti)us, 
if  the  court  should  simplj'  find  the  prisoner  "  nof  guilty,"  with- 
out proceeding  further  to  add  the  words,  "and  do  therefore 
acquit  liim,"  etc.,  still  it  is  conceived  no  further  trial  could  be 
had,  though  the  former  proceedings  were  thus  incomplete; 
whereas,  no  conviction  could  be  a  bar  which  is  not  followed 
up  by  the  sentence  of  the  court.  But  if  tlie  proceedings  were 
full  and  regular,  a  second  trial  after  one  conviction  would  be 
illegal.! 

Skc.  210.  A  court  martial  will  not  ex  officio  take  notice  of 
a  former  trial.  This  is  the  prisoner's  privilege,  and  „  ... 
must  be  jdeaded  specially.  But  such  trial  must  of  """^  '''^"'*^- 
course  have  reference  to  the  proceedings  of  a  covrt  martial  — 
for,  remarks  T)c  Hart,  "  the  same  acts  as  ma}*  be  offered 
against  the  rights  of  private  persons  may  also  violate  the 
proprieties  of  militaiy  discipline;  and,  as  such,  may  be  inves- 
tigated by  bfith  civil  and  militarj-  courts." 

Skc.  217.     In  order  to  bring  the  party  within  the  terms  and 
meaning  of  the  law.  however,  the  former  trial  must  not 
only  have  been  before  a  military  court,  but  must  have  f"'""'^  '|*^- 
been  in  all  respects  a  regular  an<i  legal  proceeding.  ''"^' 

*  .Mr.  Wirfi  opinion.  f  Dt  Hart.  J  WhartonV  C.  L.,  247. 


140  JUDGE  advocate's  vade  mecum. 

On  tliis  point  Caphiin  l)c  ilurt  observes:  "If  the  court  had  no 
right  to  tr}'  such  persons  or  sneli  offences  as  were  charged 
against  them,  or  if  it  was  illegally  constituted,  or  if  its  proceed- 
ings were  contrary  to  law,  or  the  sentence  unauthorized,  such 
illegnlit}'  vitiates  the  whole  proceedings  and  the  prisoner  must 
be  discharged.  Yet,  in  such  a  case,  the  proceedings  had  do  Jiot 
constitute  a  trial,  as  they  were  not  legally  conducted ;  and  the 
prisoner  may,  upon  a  new  ciiarge,  be  brought  to  trial  before  a 
new  court."  So  an  arrest  and  discharge  without  trial  is  not  a 
good  pica  in  bar.*  To  authorize  such  a  jtloa,  '-two  things," 
says  Mr.  Wharton,  "are  requisite:  first,  that  the  former  ac- 
quital  slioiiUl  have  been  regular;  second,  that  the  first  indict- 
ment should  have  been  sufficient."  Again,  "the  court  must 
have  been  C(tmi)etont,  and  the  [)roceedings  regular.  If  the 
court  has  no  jurisdiction,  it  is  no  bar  to  a  second  proceeding. 
And  if  the  indictment  or  charges  were  sufficient,  and  the  pris- 
oner could  have  been  legally  convicted  on  any  evidence  which 
miyht  have  been  properly  and  legall}'  adilucfd,  his  acquittal  laay 
be  suecessfull}'  plcailed  to  a  second  ti-ial.")'  And  tliis  is  in  ac- 
cordance, not  only  with  the  Articles  of  war,  but  with  the  pro- 
visions of  the  constitution,  which  declares  that  "no  per.son  shall 
be  subject  for  the  same  offence  to  be  twice  put  in  jeopanly  of 
life  or  limb."  "Twice  \n\[  in  jeopardy."  and  "twice  put  on 
trial,"  said  a  le:wned  judge,  "convey  to  the  i)lainest  under- 
standing different  ideas.  Hazard,  peril,  danger  of  a  verdict, 
cannot  mean  a  verdict  given.  There  is  a  wide  difference  be- 
tween a  verdict  given  ii\\(\  jiOjxir'li/  ol"  u  verdict.";}; 

"The  greatest  latitude,"  again  sa^'s  I)e  Uart,  -'which  it  is 
believed  can  be  claimed  in  favor  of  a  prisoner  on  this  head 
is,  that  whei'C  a  court  of  adequ:ite  powers  has  proceeded  to 
judgment,  no  second   trial  can   taUe  place:  for  thougii   the  de- 

*Dc  Hart,  142.     Grim.  Law,  248.  t  Wharton,  C.  L.,  252. 

J  On  tho  construction  of  tbis  torni,  sw  Wharton,  2C.'{,  el  acq. 


OF    MILITAHY    TIUAI-S    AND    TIIKTR    INCIDKNTS.  141 

cision  ma}-  bo  illoiijal,  and  therefore  not  binding,  still  it  was 
the  act  of  a  legitimate  court,  exercising  a  legal  authorit}'^,  but 
erroneous  in  result.  The  prisoner  has  l)een  b}-  the  proceed- 
ings, in  a  legal  Heuf^o,jropanfi:ed  in  his  interests  or  safety,  and 
he  is  not  responsible  for  the  errors  of  the  court,  nor  while 
its  powers  were  exercised  was  his  amenability  to  punishment 
destroj^ed  or  diminished." 

Sec.  218.  A  pardon  may  also  be  specially  2'>lcaded  in  bar  of  the 
trial.  "A  pardon  is  an  act  of  grace  proceeding  from  the  [)ower 
intrusted  with  the  execution  of  the  laws,  and  exempts 

1        •      1  •     •  1        1  1  •       •      1  in  1  Pardon. 

tiie  individual  on  whom  it  is  bestowed  from  the  ])iiii- 
ishmcnt  the  law  inflicts  for  a  crime  he  has  committed."  *  *  * 
But,  "a  pardon  is  a  deed,  to  the  validity  of  which  delivery  is 
essential,  and  delivery  is  not  complete  without  acceptance.  It 
may  be  rfjcffed  by  the  person  to  whom  it  is  tendered.  It  may 
be  supposed  that  no  being  condemned  to  death  could  reject  a 
pardon  ;  but  the  rule  must  be  the  same  in  capital  cases  and  in 
misdemeanors.  A  pardon,  moreover,  ma}'  be  conditional,  and 
the  condition  may  be  more  objectionable  than  the  original  pun- 
ishment."* 

A  pardon  must  correctly  cite  the  crime  or  offence  pardoned, 
and  a  misrecital  of  it  will  render  it  inoperative.  If  it  be  condi- 
tional, the  condition  must  appear  to  have  been  dul}-  performed.f 

Sec.  211'.  In  addition  to  the  ])leas  now  stated,  Captain  Dc 
Hart    informs   us   that  the  prisoner  may  also  plead 

'  •'  ^  Whatofpar- 

"  the  want  of  definite  specification  in  the  charge,  as  to  ••clarity. 
matter  or  timp,  where  the  latter  is  an  essential  part  of  the 
offence,  or  in  ftrdr-r  1o  fix  the  identity.  The  objection  would 
be  that  the  specifications  were  couched  in  terms  too  vague  to 
admit  of  a  pointed  and  particular  defence;  and  that  should 
another  prosecufion  bo  urged  against  him,  he  could  not  con- 
sistently plead  that  ho  had  been  previou8l3'  tried  for  the  same 

*  T  Pcteri.  ir.O.  f  Wharton. 


142  JUDQE    advocate's    VAOE    MKPIM. 

offence."  This  objection,  he  julds,  iitlie  prisoner  desires,  "inny 
be  j)iil  <»t1'  until  the  defence  or  be  made  the  suliject  of  observa- 
tion subsequent  to  i»lcadin<^,*'  and  need  not  necessarily  be  pre- 
sented in  the  form  of  a  plea. 

Sec.  220.     "If  a  special  plea  in  bar  be  reasonable,"  observes 
the  same  author,  "or  ]ilau>ilile,  tlioui^li  there  exist  no 

Qenernl  riili-H 

aa  to  speciiii  pi^cccdcnt  for  tlio  guidaiicc  of  the  court,  it  is  proper  to 
hear  evidence  on  the  point  raised;  and  if  the  plea 
sliould  be  received  as  valid,  the  court  would  adjourn,  having 
commiltetl  to  record  all  tiie  facts  of  their  proceedings,  and  sub- 
rait  the  same  to  the  authority  by  whieh  the  court  was  assem- 
bled," for  decision. 

Sec.  221.     Jt  is  not  necessary  to  phuul  a  tv/rm/ice  between  the 
chai'ges  before  the  court  and"  those  delivered  the  pris- 

Varianco.  .... 

oner.  If  there  proves  to  be  any  essential  dilterenoe, 
the  court  will  alwa3\s  allow  the  requisite  time  to  prepare  for 
liis  defence  on  the  oflieial  charges. 

Sec  222.     We  have  thus  stated  and  explained  the  usual  ^/ea*>- 

employed  in  trials  before  courts  martial. 

Court  to  (io-  ^      *' 

cido  iHsn.-.  After  thc  plea  has  been  ]m{  in,  the  next  proeeedings 

arc  to  determine  the  questions  whieh  are  thus  pi'esented  and 
put  in  issue.  These  questions  are  of  eourso  to  be  decided  by 
the  court.  The  manner  of  doing  tiiis  will  be  best  i-xplaiiied  by 
considering  the  course  adopted  in  thc  most  eommon  plea  of 
not  guilty. 

The  i)lea  is  lirst  to  be  reccjrded  by  the  Judge  Advocate,  who 
tlii'u   notifies  all  witnesses,  but  thc  one  to  be  exam- 

UHual  cotii>«    .  .  ,  .11  11      1  1  II 

of  prot.oj-  ined,  to  retire  from  the  court  till  called — the  rule  be- 
ing. 

ing  that  the  respective  witnesses  should  be  examined 

out  of  the  hearing  of  each  other.      It  is  especially  desirable 

that  this  should  bo  the  case  with    inspect  to  the  witnesses  of 

each  party,  altlxnigh  the  hearing  the  testimony  ol"  one  witness 

would  not  incapacitate  the  party  listening  from  testifying. 

Sec.  228,     It  is  competent  for  the  Judge  Advocate  to  open 


OF    MILITARY    TRIALS    AND    TIIEIU    INCIDENTS.  143 

the    case   by  such   explanations    and  remarks  as   he 

Case  opened. 

deems  necessary;  but  it  is   usual   to  defer  any  such 
observations,  unless  especially  called  fur  by  circumstances,  till 
the  evidence  has  all  been  concluded  and  recorded  —  when  the 
whole  subject  may  be  fully  discussed. 

Sec.  224.  The  witness  being  sworn  by  the  Judge  Advocate 
in  the  nianjicr  pointed  out  in  a  ])revious  chapter,  the 

1  1      •  1  1    u        .'^wonring 

examination  proceeds  —  being  always  cunimenced  by   witncMu-g. 

Sc  para  to  ex- 

the  prosecutor.  .imin-ation 

•  (if.  .1  test. 

The  separate  examination  of  witnesses  is  a  strong 
test  of  their  consistency',  especially  on  a  cross-examination.* 
But  all  examinations  must  be  before  every  member  of  the 
court.  The  manner  and  demeanor  of  witnesses  are  often  not 
less  important  than  their  statements.  An  over-forward  and 
t'ager  zeal  to  testify,  evasive  answers,  efforts  to  gain  time  in 
order  to  consider  the  effect  of  the  reply,  are  to  a  greater  or  less 
extent  marks  of  insincerity;  while,  on  the  other  hand,  frank- 
ness and  promptness  to  state  all  the  circumstances  of  the 
transaction    are   to    be    taken  as   indications   of  siii- 

....  ,  ".  ,     ,  Otlior  tcfU. 

cerity.f  Ihe  age,  inclinations,  education,  and  be- 
havit>r  of  witnesses  are  all  to  be  scanned,  in  which  points, 
says  Blackstone,  "all  persons  appear  alike  when  their  de])Osi- 
tions  are  reduced  to  w^riting,  and  read  to  the  Judge  in  their 
absence  ;  and  yoX  as  much  may  be  frequently  collected  from 
the  mnnnrr  in  wliich  the  evidence  is  delivered  as  the  matter 
of  it." 

A  good  opportunity  to  observe  the  manner  of  a  suspected 
witness  may  often  be  ol»tained  b}-  confronting  him  with  an 
a<lvorse  witness,  notwithstanding  the  general  rule  holds  good 
that  they  had  better  be  examined  soparatel}'. 

The  form  of  examination  is  immaterial,  whether  by  narra- 
tion or  interrogatory.     Tho  latter  is  the  more  direct  and  peno- 

*  Starkle  on  KTidetiee,  toI.  I.  rt4.  t  iWd,  458. 


144  JunoE  advocate's  vake  mkcum. 

trating.  ami  tliert'lore  llie  most  certiiin  mode  of  elieitiiitr  the 
truth.* 

Sec.  225.     Where  a  witness  whose  te.stimonv   is  important 
is  prevented  from  attendini^  the  trial  b}'  siclviiess,  the 

<<ick  witncM. 

court  may  adjourn  to  his  room  to  receive  what  he 
has  to  testify;  hut  this  must  he  done  l)y  all  the  memhei-8,  nnd 
no  one  can  act  for  the  court. "f 

Military  pei-sons  may  be  comj)elled  to  attend  a  court  martial, 
.  „  as  witnesses.     No  sudi  power  exists  as  to  other  per- 

witneMea.  nQuti ;  and  wlicrc  their  testimony  is  required,  it  may 
be  taken  by  deposition  as  ))r(Aided  in  the  74ih  .\rticie  of  war, 
before  a  justice  of  the  peace  —  the  prosecutor  and  person  ac- 
cused being  present  at  the  taking  of  the  same. 

Sec.  226.  De  Hart  excepts  to  the  i)rcvailing  mode  of  read- 
....    .  ing  the  chari'es  to  the  witness  before  he  is  examined. 

Whether  ^  O 

«houhj*be  Where  the  charge  would  evidently  suggest  the  an- 
swer to  the  witness,  by  directing  his  attention  to  par- 
ticular jjhrases,  time  and  place,  etc.,  the  objection  is  pei'haps 
well  tal:cn;  but  in  orclinary  cases,  the  reading  of  the  cliarge  is 
probably  the  best  and  readiest  w^iy  to  bring  the  mind  of  the 
witness  in  an  unprejudiced  manner  to  the  subject  matter  of 
his  examination,  esjjecially  where  this  is  not  conducted  by 
jneans  oi'  interrogatories,  which,  thongli  more  direct  and 
seai'ching,  are  yet  a  less  convinient  and  more  tedious  nuthod 
of  proceeding.  Jiut,  after  all,  the  best  rule,  as  suggestL-d  by 
Do  Hart,  is  that  the  nature  ol"  the  charges,  and  tlie  character 
and  standing  of  the  witness,  should  determine  the  c<jursc  to  be 
pursued. 

Sec.  227.     When  the  course  by  interrogation  is  adoptetl,  the 

questions  are   written   out   by  the  party  originating 

howcxiiml     them,  and   read  aloud  b}-   the  Judge  Advocate,  who 

iiK'd. 

enters  them  on  record.     If  the  question  is  objected  to, 
•  Comm.  Ill,  37.-].        •  fDo  Hart. 


OF    MILITARY    TRIALS    AND    THEIR    INCIDENTS.  145 

the  court  is  cleared  before  its  propriety  is  decided;  and  if  it  is 
considered  improper  to  read  it  in  tiie  presence  of  the  witness, 
this  step  of  clearing  the  court  should  first  be  resorted  to.  The 
majority  detei'mines  whether  the  question  sliall  be  received  or 
not.  After  an  interrogatory  is  put  and  entered  on  the  record, 
it  cannot  be  expunged,  except  by  consent  of  parties.* 

Questions  are  entered  as  put  by  the  various  parties,  as  "ques- 
tion by  the  court,''  by  the  "Jiidge  Advocate"  or  bj^  "a 
memner.       if  a  question  originating  with  a  member  is      iii.wic- 

corded. 

approved  and  received  bj^  the  court,  it  thus  becomes 
the  question  of  the  court,  and  cannot  be  objected  to,  as  all  other 
questions  maj*,  although  in  entering  it  on  the  record  it  should 
be  designated  as  a  "question  by  a  member,"  in  order  to  distin- 
guish it  and  present  a  true  record  of  facts. 

Sec.  228.  The  examination-in-chief  is  that  to  which  the  wit- 
ness is  first  subjected  b}'  the  part}'  who  calls  him. 

Course  of  ex- 

The   cross-examination    is   that   conducted   by  the  "'"'n^t'fn- 
opposing  party,  and  can  never  be  commenced  until  the  exami- 
nation-in-chief is  complete. 

The  re-examination  is  that  made  by  the  first  party,  when  the 
cross-examination  is  closed.  It  is  then  customar}-  for  the  court 
to  ask  any  questions  deemed  important  to  elicit  a  complete 
narration  of  the  facts  and  circumstances  of  the  case.  This  is 
the  usual  and  better  course,  as  it  avoids  confusion,  and  affords  a 
regular  and  consistent  record,  notwithstanding  the  court  may 
examine  the  witness  at  any  stage  of  the  proceedings,  if  expe- 
dient. 

Skc.  220.     It  is  better  to  read  over  to  each  witness  his  evi- 
dence as  recorded,  to  avoid   errors;    and   this  ought 
always  to  be  done  if  desired  b}'  liim.    \n\  corrections  donrorevito 

him. 

made  by  him  must  of  course  be  recorded.     This  evi- 
dence, however,  should  never  he  read  to  him  till  his  whole  ex- 
amination is  complete?. 

•Da  Hut. 

10 


14G  JUDGE  advocate's  vade  mecum. 

Sec.  230.     If  a  material  question  has  been  omitted  by  either 
party,  it  is  in  the  discretion  of  the  court  to  recall  the 

Witness  may         .  in-  i  rm  . 

be  n-caiied,  witncss  and  allow  it  to  be  ]nit.      llusoi  course  con- 

\rh<'ii. 

fers  the  ri^ht  of  cnjss-examiiiation  and  re-examina- 
tion to  the  extent  of  the  first  examination,  but  no  further. 
When  all  the  evidence  has  been  gone  through  in  support  of 
the  charges,  and  tlie  ])rosccution  has  been  closed,  it  must  be 
so  entered  on  the  record,  and  no  new  evidence  can  after- 
ward be  admitted  in  support  of  the  charges. 

Sec.  231.     The  defence  is  then  commenced;  but  if  necessary 
the  court  will  grant  the  prisoner  time  for  hotter  i)rei)- 

Dcfpnce.  f  r  i        i 

Time  may     aratiou  of  his  case.     The  same  order  is  luirsued  in 

bei  granted  ' 

priH.iner.  ^^^  examination  of  witnesses  for  the  defence  as  in 
that  for  the  prosecution.  If  either  party  introduce  new  facts 
or  witnesses,  the  opposing  party  has  the  right  to  bring  in 
rebutting  proofs.  But  these  subjects  will  be  further  treated  of 
in  the  chapter  on  evidence.  The  prisoner  having  completed 
his  evidence,  is  then  at  liberty  to  address  the  court  in  his  de- 
fence. In  doing  this,  he  may  present  any  statements  and  argu- 
ments in  his  power  tending  to  his  exculpation.  Much  liberty 
is  moreover  allowed  him  in  commenting  on  the  evidence  of  the 
prosecution,  and  the  consistency  and  even  character  of  the  op- 
posing witnesses,  provided,  always,  this  be  done  in  a  manner 
consistent  with  decency  and  propriety,  and  the  respect  which 
is  due  to  the  court.  This  address  of  the  prisoner  is  read  by 
himself,  his  counsel,  or  b}'  some  friend,  or  the  Judge  Advocate, 
as  may  be  found  convenient  and  desirable  to  the  prisoner. 
Sec.  232.  The  Judge  Advocate,  or  prosecutor,  has  always 
the  right  to  reply  when  the  tlefence  of  the  prisoner  is 
of  Judge      closed,  and  here,  also,  reasonable  time  for  the  j>repa- 

Advocate. 

ration  of  this  reply  is  always  conceded.     When  the 
reply  has  been  read  to  the  court,  the  trial  is  concluded. 

Skc.  233.     As   to  the  course    to    be    ])urMued    by  the  Judge 
Advocate  in  the  discharge  of  his  ditHcult  and  important  du- 


OF    MILITARY    TRIALS    AND    TIIEIR    INCIDENTS.  147 

tics,  the  reader  is  referred  to  the  previous  chapter  on  those 
subjects.* 

Sec.  234.  Before  the  judgment  or  sentence  of  the  court  is 
an«ount'ed.  there  are  various  defences  or  pleas  which  j^^^^^  ^^ 
may  be  offered  in  arrest  of  the  judgment  of  the  court ;  J"''Kii>ent. 
that  is,  there  may  be  reasons  why,  in  certain  cases,  such  Judg- 
ment or  sentence  should  not  be  pronounced  against  the  pris- 
oner. Although  these  pleas  are  seldom  employed,  as  they  may 
be  urged  in  various  forms  in  the  defence,  yet  it  may  be  well 
briefly  to  refer  to  the  grounds  on  which  they  rest. 

Sec.  235.  Idiots,  insane  persons,  and  lunatics  who,  from  a 
want  of  discretion,  are  under  a  natural  disability  to      ,„  . 

'  •'  laiotR  and 

distinguish  between  good  and  evil,  are  not  punishable  ""''^"»- 
for  their  crimes. f  But  if  lucid  intervals  occur  sufficient  to 
enable  them  to  determine  on  the  consequences  of  their  actions, 
committed  therein,  they  are  responsible.  What  particular  de- 
gree of  lunacy,  or  insanity,  is  requisite  to  excuse  the  commis- 
sion of  crime,  may  sometimes  be  an  important  question.  It 
would  require  more  time  and  space,  however,  than  can  be  here 
devoted  to  it,  and  the  reader  is,  therelbre,  referred  for  a  full 
discussion  of  the  subject,  to  Wharton's  Treatise  on  Criminal 
Law,  pages  81  to  97,  and  the  authorities  there  cited. 

Sec.  236.     2.  Misadventure,  ignorance,  etc.,  as  where  a  man  in 
the  commission  of  a  lawful  act  commits  an  unlawful 
one  ignorantly,  or  without  intention.  '""^^ 

Sec.  237.  3.  Compulsion,  or  the  legal  restraint  of  one's  will. 
Upon  this  subject  Captain  De  Hart  makes  the  follow- 

,  .  ComrtiUion. 

ing  observations:  or  i^gai  n- 

ntnunt. 

"  This  plea,  when  founded  upon  the  obligation  of 
subjection   to   military  authority,  may   present  very  difficult 
points  to  determine  J  for  it  is  a  nice  question  still,  of  how  far  a 
soldier  may  plead  justification  for  an  act  done  by  the  order  of 

•  Chapter  IIL  f  De  Rart. 


148  JUDGE  advocate's  vade  mecum. 

a  superior  officer,  whicli  order  may  prove  to  be  illegal ;  or  be 
excusabK'  lor  hesitating  to  yield  obedience  to  such  order,  upon 
llu'  jiresumption  that  it  is  contrary  to  law.  These  questions, 
however,  when  presented  to  courts  martial,  are  to  be  conrfid- 
ored  in  relation  to  military  discipline,  and  not  always  referred 
to  as  a  consideration  of  personal  rights,  and  therefore  courts 
martial  would  ])robably  extend  the  principle  of  exculpation 
under  the  pica.  Hesitating  in  the  execution  of  a  military 
order  is  clearly,  under  most  circumstances,  a  serious  ottence, 
and  would  subject  one  to  severe  penalties;  but  actual  disobe- 
dience is  a  crime  which  the  law  has  stigmatized  as  of  the 
highest  degree,  and  against  which  it  has  denounced  the  ex- 
treme punishment  of  death  ;  and  accordingly,  an  offence  of 
this  nature,  from  the  groat  danger  which  might  result  from  it, 
would  hi'  very  nicely  scrutinized  by  courts  martial  ere  a  justifi- 
cation would  be  admitted  upon  the  ground  tluit  tliore  was  no 
lawful  authorit}'  for  the  command  given.' 

The  9th  Article  of  war  requires,  under  penalties,  obedience 
to  all  lawful  commands.  But  a  difficult  and  delicate  question 
here  arises.  Unlawful  commands  are  not  obligatory;  but 
what  arc  they,  and  how  ai*e  they  to  be  distinguished?  They 
are,  says  Cajitain  De  Hart,  "such  as  are  j)lainly  and  palpably 
iii  violalion  of  the  well  known  customs  of  the  army  and  laws 
of  the  country,  and  not  those  in  which  the  question  of  legality 
is  merely  doubtful  or  undecided.  In  every  case  then  in  which 
an  order  is  not  clearly  in  derogation  of  some  right  or  obliga- 
tion created  by  law,  the  commaml  of  a  sui)erior  niusl  meet 
with  unhesitating  and  instant  obedience." 

Compulsion  ma}'  also  arise  from  duress,  or  fear  of  great  bodily 
harm.  This  fear  must  be  a  well  grounded  and  reasonable  one; 
and  when  alleged,  should  ol' course  be  jjroved  to  the  satisfaction 
of  the  court.* 


2  Inst.,  483.     1  Bl.  Comm.,  131. 


OF    MILITARY    TRIALS    AND    THKIR    INCIDKNTS.  149 

8ec.  238,  4.  Drunkenness. — This  is  a  species  of  insanit}'  or 
mjvdness;  yet  as  it  is  commonly  induced  by  the  volun- 

„,  .,     .  11111^  i  Driinken- 

tary  act  of  the  party,  it  is  usually  held  to  aggravate      nosn  how 

fiir  an  ex- 

rather  than  excuse  the  commission  of  offences.     Mere       "ise    for 

crimp. 

"  drunkenness  can  never  be  received  as  a  ground  to 
excuse  or  palliate  crime.     This  is  a  sound  and  long  established 
maxim  of  judicial  ]»olicy,  from  which  perhaps  a  single  dissent- 
ing voice  cannot  be  found."* 

There  are  cases,  however,  where  this  plea  ought  to  be  admit- 
ted, but  only  as  exceptions  to  the  general  rule,  which  is  un- 
doubtedly well  founded.  Thus,  at  law,  while  drunkenness  is 
no  defence  or  palliation,  it  may  be  proved,  in  order  to  rebut 
the  presumption  of  malice  where  that  is  requisite,  as  in  mur- 
der, to  make  out  the  crime,  or  to  show  the  grade  of  intention. f 
Much  more  should  this  excuse  be  admitted  in  the  cases  of  sol- 
diers; especially  where  it  can  be  presented  as  a  ground  of  arrest 
of  the  sentence  of  the  court.  To  refuse  to  give  proper  consid- 
eration and  weight  to  such  a  plea,  when  we  remember  "the 
habits  of  soldiers  and  the  character  of  oflFences  most  frequently 
perpetrated  by  them,  would  be  opposed  to  the  maxims  of 
human  reason.  Where  there  is  no  certain  or  apparent  pre- 
disposition to  commit  the  offence,  and  where  its  enormity  is 
not  such  as  to  shock  the  sentiment  of  humanity,  courts  martial 
do  at  times  consider  this  excuse  as  having  some  right  to  con- 
sideration,  though  it  must  be  remembered  that  it  is  only  re- 
ceived in  extenuation,  if  at  all,  of  smaller  and  lighter  offences."^ 

Sec.  289.     We  conclude  this  branch  of  the  subject  by  ob- 
serving that  the  matters  of  defence  which  have  thus 
been  dcsignat<'d  as  "  pleas  in  arrest  of  the  Judgment    ^^l^%  ™^ 
of  the  court,"  are,  as  already  intimated,  rarely  em-    *  ' 
ployed  in  this  form,  but  are  usually  ])resentcd  and  relied  upon 
as   grounds  of  defence   in    the   course   of  the   trial.     This  is 

•Wh*rtnn.  M.  tn.id.  93.  }  Do  TTurf.  IM. 


150  JUDGE  advocate's  vade  mecum. 

more  especially  the  ease  with  respect  to  the  excuse  of  drunken- 
ness, which,  if  admitted  at  all,  is  only  to  be  taken  as  ground  of 
mitigation  or  extenuation  in  the  iJLjliter  and  loss  aggravated 
oflfences.  Where,  howevoT,  the  opportunity  has  been  allowed 
to  pass  in  the  trial,  it  might  be  admissible  to  urge  these 
grounds  of  defence  in  the  form  of  a  plea,  as  now  explained. 

Sec.  240.  III.  0/ the  Finding  of  the  Court.— Tho  trial  having 
been  concluded  by  the  examination  of  all  the  evidence  adduced, 
and  the  discussion  of  the  case  by  the  parties,  the  question  of 
the  guilt  or  innocence  of  the  accused  is  now  to  be  decided  by 
the  court. 

But  the  whole,  and  each  part  of  the  charges  must  first  be 

exhausted,  and,  notwithstanding  the  court  may  be 

chRrg'-tobe    Satisfied  of  the  guilt  of  the  prisoner,  on  an}'  branch 

exhausted. 

of  the  accusation,  so  as  to  render  his  conviction  neces- 
sary and  certain,  they  are  still  bound  to  continue  their  exami- 
nation till  the  whole  subject  is  disposed  of.  The  whole  of  the 
proceedings  should  then  be  read  to  the  court  by  the  Judge 
Advocate,  and  it  is  recommended  that  a  fair  copy  of  the  same 
be  placed  on  their  table  for  reference.  In  important  and  volu- 
minous cases,  this  is  always  requisite.  The  court  should  in 
their  investigations  exercise  all  possible  forbearance,  patience, 
and  prudence,  remembering  the  high  responsibility  of  their 
office,  and  the  vital  interests  which  are  committed  to  their 
keeping.  Mr.  Tytler  recommends  that  '*  where  there  are  dis- 
tinct and  separate  charges,  the  pre,sident  and  members  of  the 
court  reason  and  deliberate  separately  on  each  charge,  candidly 
discussing  in  a  free  and  open  conversation  the  iinpoi-t  of  the 
evidence,  and  allowing  its  full  weight  to  every  argument  or 
presumption  in  favor  of  the  prisoner."*  This  i)ractice,  says 
(Japtain  DeJlart,  is  approved  by  other  military  writers,  and 
especially  by  General  Kennedy  in   his  work  on  courts  martial. 

*  Tytlcr,  quoted  by  Dc  Hart. 


OF    MILITARY    TRIALS    AND    THKIR    INCIDENTS.  151 

Sec.  241.  Wlu-n  the  court  arc  ready  to  deliver  their  opinions, 
they  notify  the  fact  to  the  Judge  Advocate,  who  tlicn 

Opinions    of 

proceeds  to  read  the  several  charges  and  the  specifica-  court,  m.id* 

'^  '^  *  nf  .Iclivi-ry. 

tions  thereto  in  their  order,  and  to  take  the  vote  of 
the  members  upon  each  specification  or  charge,  beginning  with 
the  youngest  member,  as  required  in  the  Articles  of  war.  The 
manner  in  which  this  is  done  has  already  been  stated*  and 
need  not  be  repeated.  The  vote  on  each  specification  having 
been  recorded,  the  opinion  on  the  charge  is  now  given,  and  also 
recorded,  and  so  on  till  the  whole  are  exhausted. 

Sec.  242.     In  general  a  majority  of  voices  decides  the  guilt  or 
innocence  of  the  prisoner ;  but  it  is  otherwise  where 
the  punishment  of  death  is  inflicted.     The  87th  Arti-      cesnaryto 

decide. 

cle  of  war  declares  that  no  person  shall  suffer  death 
"but  bj^  the  concurrence  of  two-thirds  of  the  members  of  a 
court  martial ;"  nor  can  any  sentence  of  death  be  passed  by 
the  court,  except  in  the  cases  mentioned  in  the  Articles  of  war. 
In  all  cases,  therefore,  where  the  prisoner  is  sentenced  to  death, 
the  record  must  state  that  the  sentence  was  concurred  in  b}- 
two-thirds  of  the  court.  This  statement  of  the  record  can, 
under  no  circumstances,  be  dispensed  with.  If  it  is  omitted, 
the  error  would  be  fatal ;  unless  in  cases  where  the  court,  not 
being  dissolved,  and  having  a  clear  knowledge  of  the  fact  that 
the  required  number  actually  concurred  in  the  sentence,  could, 
on  the  return  of  the  record  by  the  authority  convening  them 
for  revision,  so  amend  their  finding  as  to  comply  with  the 
terms  of  the  law,  without  in  other  respects  violating  the  well 
known  rules  which  regulate  courts  martial  in  all  such  pro- 
ceedings. 

Sec.  243.     ?/Xccpt  in  capital  cases,  the  rule  is  simply  to  state 
the  fact  of  acquittal  or  conviction,  without  reference 
to  the  majority  bj'  which    the   result    has   been    ob- 
tained.    The   reasons  on  which   this   rule    has   been 

*  8«ctioD  89. 


PreHitient  no 
catiting  vote. 


152  JUDGE  advocate's  vade  mecum. 

established,  as  collected  by  De  ilart,  are  substantially  these : 
It  is  reifarded  as  iniportuiit  that  iho  opinions  of  individual 
members  should  lie  concealed,  and  to  reveal  them,  directly  or 
indirectly,  would  be  in  violation  of  the  solemn  promise  and 
obligation  to  secrecy  which  the  law  has  imposed  on  each  mem- 
ber of  the  court,  as  well  a^  the  Judge  Advocate.  To  stati-  tliat 
the  vote  was  unanimous,  would  at  once  reveal  what  was  desired 
and  intended  to  bo  concealed;  while,  on  the  other  hand,  to 
record  the  ]nirticular  number  of  votes  given  in  other  cases, 
might  lead  to  the  iliscovery  of  individual  opinions.  The  only 
safe  rule,  therefore,  is  the  one  indicated  above. 

Sec.  244.  It  has  already  been  stated  that  the  jjresident  of 
the  court  votes  as  other  members,  and  has  no  casting 
vote.  It  follows,  therefore,  that  where  an  equality  of 
votes  occurs  on  the  finding  of  the  court  (whicli  may  lia])pen 
where  the  members  are  reduced  by  sickness  or  other  accident), 
the  prisoner  will  be  acquitted,  u))on  the  principle  of  law  that 
the  benefit  of  all  doubts  is  to  be  given  in  favor  of  the  accused. 

Sec.  245.  Special  verdicts  are  sometimes  found  necessary  in 
„     .  ,  military  as  well  as  civil  courts.     Thus,  remarks  Cai)- 

Tt-rdicts.  ^^j^^  J)e  Hart,  "circumstances  whicli  arc  embodied  in 
the  charges,  and  upon  which  constructive  guilt  is  charged,  are 
necessarily  dependent  upon  motive,  l)y  wiiicii  the  degree  of 
criminality  is  determined."  This  particular  degree  it  is  the 
duty  of  the  court  to  ascertain  by  their  findings.  The  verdict 
may,  therefore,  be  special;  i.  e.,  eontinues  the  same  author, 
"  l)art  oi"  the  specification  nia^'  l»e  found,  and  otlier  parts  de- 
clared void  of  criminality,  or  the  entire  circumstances  sot  forth 
proved,  and  yet  the  prisoner  declared  without  guilt.  But  in  all 
such  findings  the  decision  of  the  court  must  be  clear  and  spe- 
cific, so  tiiat  tlie  anujuiit  of  punislinionL  be  seen  to  bear  a  proper 
relation  to  the  degree  of  guilt." 

Sometimes  guilt  is  charged  and  ])redicated  on  a  supposed 
criminal  knowledge  or  intent  in  the  prisoner,  which  the  evi- 


OF    MILITARY    TRIALS    AND    THEIR    INCIDENTS.  153 

(lence  does  not  sustain,  notwithstanding  the  facts  alleged  arc 
proved.  When  the  court  is  of  this  opinion,  the  verdict  or  find- 
ing must  so  declare.  Ho,  also,  if  the  evidence  leads  to  such  a 
conclusion,  the  court  may  find  the  accused  guilty  as  to  certain 
facts  in  the  specification,  and  nia}^  acquit  him  as  to  others. 

Sec.  24t>.     The  distinction,    then,  between  a  special   and    a 
ireneral  verdict  in  courts  martial  is  simply  this,  that 

"  I    ^  '  Distinction 

in  the  former,  the  guilt  is  qualified  and  confined  to  •'«*"''••'>  gen- 
jiarticular  parts  of  the  charge,  while  as  to  other  parts  '^"' 
of  the  same  charge  the  accused  may  be  acquitted,  either  from 
want  of  proof  as  to  the  fiict,  or  of  criminal  intent,  where  the 
fact  is  established;  but  in  the  latter  or  general  verdict  or  find- 
ing, there  is  a  simple  and  unqualified  declaration  of  guilt  or 
innocence  expressed  by  the  terms,  "guilty,"  or  "not  guilty." 
This  peculiarity  in  the  manner  mid  form  of  the  special  finding 
in  a  court  martial  arises  from  the  fact  that  the  members  are 
judges  both  of  the  law  and  facts  in  all  cases,  and  are  not  con- 
fined, as  would  be  a  jury  in  civil  courts,  where  a  special  verdict 
is  rendered,  to  the  bare  ascertaining  of  facts,  leaving  the  court 
to  apjdy  the  law. 

Sec.  247.     It  is  important  that  the  degree  of  guilt,  or  the 
extent  of  the   charge   proved,  should   be   explicitly 

I)f»2Xoe    of 

stated  in  the  finding.    In  general,  it  is  better  that  the      K"iu  to  »>« 

fonnil. 

terms  employed  be  simply  of  acquittal  or  conviction. 
To  declare  the  charges  not  proven  is,  in  the  opinion  of  (  uptain 
l>e  ilart,  at  best  an  ambiguous  expression,  and  may  tend  to 
strengthen  the  imputations  of  the  charge.  So  he  adds,  •ac- 
quittals, characterized  by  the  terms  honorable,  most  honorable, 
fully  or  most  fully,  should  of  course  be  employed  onl\-  when  the 
nature  of  the  charge  makes  them  necessary." 
.  Sec.  248.  It  is  competent  for  court  martials  to  animadvert 
on    the    motives   of  the  prosecutor,  when  obvious)}' 

...  /.    1  ...  -ii       Ml  Ooart  may 

uroundcd   in    a  sinnt   of  hostility  or   lil-will   tf>  the  rwnmre pixn^ 

'^  '  "^  pcutor,  eU. 

accused;  and,  on  the  other  hand,  when  circumstances 


154  JUDGE  advocate's  vape  mecum. 

require  it,  "to  declare  their  opinion  tluit  be  has  been  actuated 
by  proper  motives,  and  by  a  sense  of  duty,  and  regard  for  tlie 
service." 

Thus,  also,  may  the  conduct  of  military  witnesses  be  very 
properly  noticed  by  the  court.  "  Falsehood  and  prevarication, 
when  perpetrated  by  a  witness  speaking  under  the  solemn  obli- 
gations of  an  oath,  are  certainly  most  immoral  as  well  as  dan- 
gerous acts,  and  therefore  all  communities  which  have  cnjo3'ed 
the  benefit  of  a  judicial  system  have  punished  them  as  oftences; 
and  in  noticing  misconduct  on  the  part  of  military  witnesses, 
the  court  should  be  specific  and  not  general,  so  that  the  oflFend- 
er  may  be  brought  to  answer  by  the  jirojier  authority." 

Sec.  249.  Sometimes  the  degree  of  guilt  proved  is  not  com- 
mensurate with  the  charge.     Where  this  is  the  case, 

Court  may 

find  K»9  ^]^Q  court  may  find  the  accused  guilt}'  in  a  less  degree 
charg.d.  ^^^^  ^1^.^^  alleged  against  him.  But  care  must  bo 
taken  that  the  nature  of  the  offence  found  is  similar  to  that 
charged,  that  is  to  say,  while  the  degree  of  guilt,  or  of  the 
offence  may  ditler  from  that  alleged,  its  character  can  never  bo 
diff'erent;  thus  a  party  though  charged  with  desertion,  may 
only  bo  found  guilty  of  absence  without  leave.  The  intention 
of  the  party  is  here  received  as  modifying  the  degree  of  guilt 
imputed  to  him,  and  the  grade  of  the  offence  found  is  lowered 
accordingly. 

Thci'e  are  degrecH  of  culpability  to  be  considered  in  every 
act  capable  of  division  into  offences  of  greater  or  less 

KxtcnuiiliiiK  .         ,  fj.,  .        ,  1^111 

circuiiiKtiiii-    magnitude,      ihe  sentnu-i  overcome   by   the  hurdens 

ces. 

of  the  day,  or  the  fatigues  of  a  march,  might  sleep 
at  his  post,  but  would  nevertheless  incur  the  penalty  of  the 
law,  as  being  guilty  of  a  grave  offence,  ai»d  j'ct,  though  his 
condition  and  circumstances  could  not  authorize  an  acquittal, 
they  might  very  well  bo  received  in  extenuation  or  palliation 
of  his  guilt.* 

•  De  Hart. 


OF    MILITARY    TRIALS    AND    THEIR    INCIDENTS.  155 

Sec.  250.     The  minority  are  bound   by  the  dooision  of  the 
majority,  or  such  other  proportion  of  the  M'hole  court 

Miniirity 

as  are  authorized  bv  the  law  to  determine  the  case.       bonmiby 

majority. 

As  has  been  stated,  the  exposure  of  individual  opin- 
ions is  not  allowed;  and  to  avoid  this  the  members  usuall}- 
write  their  decision,  guiltj^,  or  not  guilty,  with  the  desired 
qualifications,  on  paper,  and  the  vote  is  afterward  announced 
by  the  Judge  Advocate  in  the  manner  heretofore  explained.* 
The  court  are  not  limited  to  a  single  vote,  but  may  continue  to 
vote  until  a  decision  is  obtained,  and  the  result  announced, 
upon  each  specification  and  charge. 

Sec  251.     fV.  Sentence  of  the  covrt. — A  court  martial,  is  not, 
as  in  the  case  of  a  jury  in  a  civil  court,  obliged  to  com- 
pletc  the  verdict  before  separating  ;  but  may  adjourn     ^;!};;""' 
from  daj'  to  day  to  consider  their  finding  and   sen- 
tence.    But  their  acts  must  be  of  the  entire  court,  as  such,  and 
it  would  be  manifestly  improper  and  illegal  to  pronounce  any 
decision  which  had  not  been  considered  by  the  entire 

1  •  1  1  i         Evorv  mcin- 

court.      Every  member   is    moreover   bound    to  vote   i.or  muM 

loiiKider  tho 

some  punishment  upon  a  conviction  bv  the  required   "■■nt'-nce. 

'  '  .  X  ^„J  vote, 

number  of  the  court;  and  therefore,  where  the  accused 
has  been  found  guilty  in  a  legal  way,  no  member  can  be  ex- 
cused from  voting  a  punishment  upon  the  ground  of  a  \irant 
of  concurrence  in  the  conviction,  or  of  his  having  actually 
voted  an  acquittal.  "The  moment  the  finding  is  recorded  the 
right  of  individual  judgment  ceases;"  and  the  party  thus  con- 
victed by  the  court  can  only  be  regarded  bj'^  each  member  as 
a  legitimate  an<I  prrtper  object  of  piinishment.  Moreover,  '  all 
members  must  vote  some  legal  sentence;  and  if  that  which  any 
member  votes  for  is  not  carried,  some  punishment  must  be 
voted  till  a  majority  agree  as  to  one  punishment."  Hence,  "if 
a  member  should  vote  for  death,  which  is  not  carried  by  two- 

♦  P»jrfi09. 


156  JUDGE  advocate's  vade  mecum. 

thirds  of  the  court,  he  must  vote  some  other  punishment."* 
And  if  a  diversity  ot  opinion  exists  as  to  the  nature  of  the  sen- 
tence, it  will  of  course  be  necessary  to  compromise  opinions  to 
an  extent,  to  enable  the  court  to  a^rce  upon  the  punishment 
to  be  pronounced,  as  they  are  bound  to  declare  some,  for  the 
offence  of  whidi  lliey  have  found  the  prisoner  <;uilty.  Ami  not 
only  is  it  incunibcnt  on  each  member  to  vote  on  the  punish- 
ment, "  but  everj'  member  is  bound  to  vote  on  every  question 
which  is  presented  for  settlement  by  the  court. "f 

Sec.   2o2.      Two   punisliincnts   essentially    different   cannot, 

without  express  authority  of  law,  bo  inflicted  for  the 

mentrmnio   samc  offcucc ;  neither  can  anj'  be  awarded  which  are 

be     iiiflicteil  .         ,   ,  ,  /.  •  i        i    i 

for  same  ..f-   not  recognizcd  by  the  custom  of  war,  nor  prescribed  hy 

fence. 

Statute.  And  wliere  the  law  i)rescribes  a  particular 
penalty  for  an  offence,  no  other  can  be  imposed.];  But  on  these 
subjects  we  have  already  spoken,  and  the  reader  is  referred 
to  what  has  been  said.§ 

In  referring  to  this  subject,  Captain  De  Ilart  has  the  follow- 
ing observations : 

"In    ])assin<^  sentence  courts   martial    should   be  careful   to 
employ  dear  and  unambiguous  languaLCo,  so  that  the 

Terms  of 

Mnt«Dce.  kind  and  degree  of  punishment  shall  be  set  forth 
definitely  and  i)recisely;  ami  the  mode  of  inflicting  cajtital  pun- 
ishment should  be  designated.  The  military  laws  do  not  say 
how  a  criminal,  offending  against  such  laws,  shall  be  put  to 
death,  but  leaves  it  entirely  to  the  custom  of  war.  Shooting, 
or  hanging,  is  the  method  determined  by  such  custom.  A  spy 
is  generally  hanged,  and  mutiny,  accompanied  with 
*"'"'"■  loss  of  life,  is  punished  by  the  same  means.     De.ser- 

lion,  disobedience  of  orders,  or  other  military  crimes,  usually 
by  shooting;  the  mode,  however,  in  all  cases  (that  is,  cither 
shooting  or  hanging),  may  be  declared  in  the  sentence.     The 


»  Hough,  an  quoted  iu  De  Hart.  f  De  Hurt.  %  Dc  llart. 

^  See  sections  154  tu  169. 


Marking 
with  Iftter. 


OF    MILTTARY    TRIALS    AND    THEIR    INCIDENTS.  157 

sentence,  too.  in  capital  cases,  may  simply  declare  the  judg- 
ment to  be  i<hot  to  death  with  mnsketry,  or  be  hanged  by  the  neck 
until  dead;  or  it  may  add,  at  such  time  and  place  as  the  command- 
ing general,  or  (as  the  case  maj-  be),  the  President  may  appoint. 

"So,  for  instance,  should  the  language  of  the  sentence  be  full 
and  explicit  when  corporal  ]»unishment  is   to  be  in-  ^^^^  ^^^^ 
flicted,  or  when  the  convict  is  to  be  marked  :  as  that,  ''""'"'""«"'■ 

he  receive lashes  on  his  bare  back  with  a  cat -o' -nine-tails,  or 

that  he  be  marked  on  the hip  with  the  letter  D,  one  inch  in 

length,  in  indelible  ink. 

"As  soldiers  are  marked  for  desertion  with  the  letter  I),  and 
also,  at  times,  with  the  same  letter  for  drunkenness, 
it  is  recommended  that  for  the  first  named  offence  the 
mark  be  put  on  the  left  hip,  and  for  the  other  on  the  right  hij). 
This  will  enable  an}-  officer,  afterward,  should  the  convict  be 
presented  for  notice,  to  determine  the  off'ence  for  which  he  is 
marked.' 

Sec.  253.     Where  a  statute  provides  for  the  punishment  of 
an  off'ence.  the  words  of  the  law  oui;ht,  as  far  as  prac- 

"       '  '■  W..r<lg  of 

ticable,  to  be  employed  in  framinj;  the  sentence.    The     "l"  '".^^ 
judgment  of  a  court  martial  is  only  final  when   ap-    •"""'"'^'' 
proved  by  the  reviewing  authority,  and,  therefore,  in  sentenc- 
ing an  officer  to  be  cashiered,  it  would  be  improper  to  add  such 
words  as,    "  and  he  is  hereby  cashiered  accordingly."* 

Sec.  254.  The  term  of  imprisonment,  when  not  established 
by  the  sentence,  is  regarded  as  commencing  from  the  Tfrmof  im- 
•iay  of  its  promulgation;  but  if  an  unusual  time  rn^-nment. 
elapses  between  the  approval  and  promulgation  of  the  sen- 
tence it  is  counted  as  part  of  the  punishment  Where  solitary 
confinement,  vXc,  is  directed,  the  time  named  must  be  com- 
pleted with  the  requisite  conditions. 

Skc.  255.     Recommendations  to  the  clemency  of  the  execu- 

•  De  Hart. 


158  JUDGE  advocate's  vade  mecdm. 

tivo,  or  commanding  general,  are  sometiraos  made  by 

Rerommpn-  .  .... 

dation  to       the  court,  ID  sDecial  cases.     W  hen  this  is  done,  it  inav 

mercy. 

be  addressed  on  a  separate  slieet  of  paper,  but  never 
embodied  in  tlie  sentence  of  the  court.  The  better  way  is  to 
write  it  at  foot  of  the  sentence,  as  it  is  thus  in  no  danger 
of  being  lost  or  overlooked.  A  recommendation  to  mercy  is 
not  the  act  of  th£  court,  and  hence  may  be  made  by  any,  even 
an  individual  member. 

Sec.  250.     Previous  to  the  Hiuil  adjournment  of  the  court, 

they  may  modify  or  change  the  sentence  agreed. 
may  change    upon;  but  their  whole   proceedings  must  appear  on 

Hentpncp 

bcfoi..  ml-     the  record.'    Hence  the  previous  judirment  should  not 

jimrnment.  ^ 

be  erased  nor  interlined,  but  the  sentence  should  bo 
written  out  and  entered  by  the  Judge  Advocate  anew,  as  last 
agreed  upon. 


Chapter  VII. 


OF  THE  FINAL  PROCEEDINGS. 


Sec.  257.     We  are  now  to   consider  the   final  proceedings 
upon  the  trial,  and  in  doing  so,  will  examine — 

I.  As  to  the  Revision;  which  involves  the  confirmation   or 
disapproval  of  the  proceedings  and  sentence. 

II.  As  to  the  Execution  of  the  Sentence. 
1.  As  to  the  Revision  : 

In  the  G5th  Article  of  war  it  is  declared  that  "no  sentence 
of  a  general  court  martial  shall  be  carried  into  execu- 
tion until  after  the  whole  proceedings  shall  have  been 
laid  before  the  officer  ordering  the  same,  or  the  officer  com- 
manding the  troops  for  the  time  being;  neither  shall  any 
sentence  of  a  general  court  martial,  in  the  time  of  peace,  ex- 
tending to  the  loss  of  life,  or  the  dismission  of  a  commissioned 
officer,  or  which  shall,  cither  in  time  of  peace  or  war,  respect  a 
general  officer,  be  carried  into  execution,  until  after  the  whole 
proceedings  shall  have  been  transmitted  to  the  Secretary  of 
War,  to  be  laid  before  the  President  for  his  confirmation  or 
disapjiroval,  and  orders  in  the  case.'' 

Sec.  25S.     The  proceedings  of  the  court   having   been   sub- 
mitted to  the  reviewing  authority,  it  is  incumbent 
that  a  strict  and   careful  examination  of  the  whole    Y',,^"  '*^ 
record  should  at  once  be  made,     if  they  are    found    '""^ 
to  be  regular,  he  should  proccc<l  to  appr<>ve  and  confirm,  or  to 
disapprove  them,  as  may  be  determined.     On  the  otlier  hand, 


160  JUDGE  advocate's  vade  mf.cum. 

if  mistake  or  error  is  discovered  in  tlie  nroceedinffs, 


IDHV   be   re- 
turner 

omrt. 


turned  to"     ^^^®  propcr  courso  is  to  return  them  to  the  court  for 


reconsideration  and  correction.  This  power  of  remit- 
ting the  proceedings  of  a  court  for  reconsideration  is  based  on 
the  custom  of  the  service,  and  is  analogous  to  the  practice  of 
the  civil  courts  in  jmrticular  cases.  Thr  jn-inci|»;il  causes  for 
■which  courts  martial  are  usually  required  to  revise  their  pro- 
ceedings are  stated  by  Captain  DcHart  to  bo  "where  insuffi- 
cient or  undue  weight  has  been  given  to  testimony,  which  is 
supposed  to  arise  from  inadvertence,  or  misconception  of  the 
law  or  the  custom  of  war;  or  where  an  exorbitant,  inadequate, 
or  illegal  punishment  has  been'  awarded."  liut  wiiatever  be 
the  occasion  for  which  the  reconsideration  is  ordered,  the 
officer  directing  it  should,  in  reconvening  the  court,  point  out 
the  particular  cause,  or  errors,  which  render  it  necessary. 

Sec.  259.  In  reconsidering  their  proceedings,  the  court  must 
^    .    ,      .  take  them  as  they  stand,  and  cannot  have  I'ccourse  to 

Duty  of  court  •'  ' 

in  such  ca«fH.  j^d^jjtJQnal  Bvidcnce,  or  new  facts  of  any  description, 
nor  recall  the  former  witnesses;  thoir  whole  duty  i8  to  review 
the  record ;  nor  can  they  in  any  manner  obliterate  or  alter  it, 
as  a  record.  Additions,  however,  may  be  made  to  it,  which 
plainly  appear  as  such,  by  the  court,  for  this,  in  part,  is  the 
object  of  its  reconmiittal. 

When  the  case  is  thus  remanded  for  the  reconsideration  of 
the  court,  it  is  their  duty  to  examine  all  the  points  to  which 
their  attention  has  been  directeil  with  the  utmost  care,  pa- 
tience, and  deliberation,  whicii  of  coiii-sc  would  involve  a  i-econ- 
sideration  of  their  former  opinion,  findings,  and  sentence;  these, 
however,  as  just  observed,  must  never  be  erased,  but  the  revised 
opinion  and  sentence  are  sent  in  as  additions  to  the  record. 

Skc.  2(JU.  Ill  this  revision  the  court  ma}'  "amend  any  de- 
«.,  .        .   fects  resulting  from  its  own   decision   not  connected 

Vi  lint   court  o 

nmjamomi.  ^,j^^  qucstious  iuvolviug  tlic  legality  of  their  pro- 
ceedings; but  it  can  amend  no  illegality  as  to  the  constitution 


OF    THE    FII^AT.    PROCKKtHNOS.  l(5l 

of  the  court,  or  defects  in  its  composition  ;  nor  can  any  ille- 
gality in  the  eharjje  be  po  remedied ;"  these  latter  deficienroS 
must  be  fatal,  and  will  entirely  invalidate  all  the  proceedings. 

Skc.  261.  If  the  court  are  satisfied  that  the  objections  taken 
to  their  action  by  the  reviewing  authority  are  well  founded, 
they  ought,  of  course,  to  inake  such  corrections  a«  the  law  and 
facts  justify;  but  if  of  a  dilTerent  opinion,  thej'  have  only  to 
adhere  to  their  previous  decision.  In  either  case,  the  record 
must  be  again  returned  to  the  reviewing  officer,  who  is  finally 
to  dispose  of  the  case  by  confirming  or  disapproving  the  pro- 
ceedings, as  may  be  deemed  best. 

Sec.  262.  A  distinction  has  Ixjen  made  between  the  terms 
^'approval"   and    "confirmation,"   in   this  connection. 

ApproTal 

"All  such  distinctions,"  observes  De Hart,  "can  only       ""^  ^f"- 
be  made  by   the   law   itself      Whenever   there  is  a       *''"" 
.doubt  as  to  the  pro]>er  terms  to  be  employed  to  express  thd 
decision  of  the  reviewing  officer,  reference  should  be 

,        ,  ,  .     .  J  ,       ,  '  Rill*  aK  W. 

made  to  the  statute,  and  such  language  or  terms 
Beleoted  as  are  embodied  therein ;  no  other  rule  is  safe.  Ac- 
cording to  the  langujige  of  the  fioth  Article  of  war,  to  ropfirm 
the  proroodings.  covers,  by  this  term  of  approval,  all  the  do- 
ings of  the  court  included  in  the  sentence;  and  to  disapprove 
the  same,  equally  rejects  all." 

"  If  there  be  errors  in  the  proceedings  which  are  not  so 
grave  as  to  conflict  with  the  rights  of  the  prisoner,  or  the 
demands  of  justice,  such  errors  would  be  adverted  to  and 
modify  the  decision  of  the  reviewing  officer,  but  would  not' 
necessarily  lead  to  an  absolnte  disapproval  of  all  that  the  rourt 
had  done.  And  so.  if  the  sentonce  should  be  too  inadeqimte, 
or.  on  the  contrary,  t-oo  severe,  the  like  discretion  is  left  to  the 
reviewing  aathority  to  nnimndvert  upon  the  same,  and.  accord- 
ing to  his  opinions  as  to  the  wants  of  the  ser^'ice.  either  Hend 
back  for  revisal.  mitiirato,  remit,  or  confinn  the  sentence. 

^     *     *     «  Whenevi'r  either  the  first  or  second  part  of  the 
11 


162  jinoE  advocate's  vape  mecum. 

trial  is  defective,  the  revie\vin<^  aiitliority  may  in  ivmarking 
upon  the  same,  either  confirm  or  disapprove,  according  to  the 
proprieties  of  the  case,  the  whole  proceedings. 

Sec.  203.      If  the  court  upon    revision   has  adhered  to  its 
first  decision,  the  reviewing  officer,  notwithstanding 

Where  court    .......  i  i  i  ■ 

adhere  to      his  opinion   that  it   is  erroneous,  rather  tlian   let   the 

former  <ieci»- 

ion.  what      criminal    go   unpunished    alto<;ether.   mav    prefer   to 

done.  rr.  1  o  .1 

confirm  the  proceedings,  should  that  he  legal,  and  if 
the  sentence  is  excessive  or  unusual,  may  remit  such  portions 
of  it  as  he  sees  best.  And  in  the  remission  or  mitigation  of 
any  sentence  it  is  very  proper  to  consider  the  provocation  re- 
ceived by  the  convicted  person.* 

8kc.  264.  It  Avill  be  seen  that  the  power  to  review,  for  the 
Power  to  purpo.se  of  Confirming  or  disapproving  the  proceed- 
review.  j^^^  ^^  ,^  court,  is,  by  the  65th  Article,  already  quot- 
ed, vested  in  two  distinct  parties.     1st,  as  to  certain  cases,  '-in 

the  officer  ordering"  the  court;  and  2d,  in  the  Presi- 

Dutv  of 

reviewing      dcnt.     If  the  scntcncc,  in  time  of  peace y  extends  to  the 

officer. 

loss  of  life,  or  the  dismission  of  a  commissioned 
officer,  or  either  in  time  of  peace  or  war  respects  a  general 
officer,  it  cannot  in  any  of  these  cases  be  executed  until  the 
whole  proceedings  have  been  transmitted  to  the  Secretary  of 
War,  to  be  laid  before  the  President.  In  such  instances  there- 
fore, the  officer  ordering  the  court  has  no  authority'  over  the 
subject.  But  in  those  cases  to  which  his  authority  extends  he 
has  power  to  pardon  or  mitigate  any  ]>unishment;  and  even  the 
excepted  sentences  (death  and  cashiering),  whicli  he  may  /n 
time  of  war  carry  into  effect  by  virtue  of  the  6oth  Article  of 
war,  lie  may  suspend  by  authority  of  the  89th  Article  till  the 
pleasure  of  the  President  is  known  —  to  whom  he  is  required 
iinrnediately  to  transmit  such  suspension,  with  copies  of  the 
proceedings  of  the  court.     This  power  to  "pardon   and  raiti- 


*0n  the  subject  of  provoealiou,  see  Wharton'^  C.  L.,  430. 


OF    THE    FINAL    PROCEEDINGS.  l63 

gate"  is  also  conforrcd  by  the  last  named  Article  on  any  colo- 
nel or  commanding  officer  of  a  regiment  or  garrison  where  a 
regimental  or  garrison  court  martial  shall  bo  held. 

Skc.  2ft.").  The  duty  of  the  reviewing  officer  is  thus  clearly 
pointed  out  and  limited  by  law.  He  has  power  to  suspend  the 
execution  of  the  sentence  in  specified  cases;  and  to  mitigate  it, 
or  pardon,  in  others.  But  he  cannot,  ovi^n  with  the  consent  of 
the  convicted  person,  alter  or  commute  any  punishment.  To 
commute  a  punishment  is  to  exchange  it  for  one  of  less  se- 
verity, or  to  substitute  for  it  one  of  a  different  kind.  This 
the  law  has  not  anthoi-ized.  To  pardon  means  to  absolve  and 
acquit;*  to  mitigate  is  to  abate  or  moderate  in  degree  the 
same  punishment.  The  language  of  the  law  is  therefore  ex- 
plicit, and  does  not  permit  any  change  in  the  species  or  kind 
of  punisliment  by  the  reviewing  officer.  There  seems,  there- 
fore, to  be  no  dispute  as  to  the  nature  and  extent  of  the  author- 
ity conferred  on  the  reviewing  officers,  or  officer  "  ordering  the 
court."  His  power  is  clearly  limited  to  pardon  and  mitigation 
of  the  sentence.  Beyond  this,  says  De  Hart,  he  cannot  go;  and 
an\'  attempt  to  change  the  punishment  in  kind  would  be 
illegal. 

Sec.  2()t).  IJut  is  the  other  reviewing  authority,  the  Presi- 
dent, thus  limited  and  controlled?     Opposite  opinions 

*  ^  ^  The   I'rcsi- 

have   been    expressed   and    ably    maintained    on   this     ^pntiuithe 

1  •'  reviewing 

question;  and  to  give  the  reader  a  clearer  view  of  the     i^**"^- 
subject,  the  arguments  on  each  side  will  here  be  substantially 
wt  forth. 

In  1^20,  the  Tnited  States  Attorney-^^iencral,  Mr.  Wirt,  gave 
the  opinion  that  the  "power  of  pardoning  the  offence 

1  .'ii,!  ^1  •  1  ••        OpinioiiB  on 

docs  not  include  the  power  of  chanirinir  the  punish-   xk-.-  utit.j^rt 
mcnt;  but  the  powt-r  to  mitigate  the  punishment  de- 
creed by  a  court  martial  cannot  be  fairlj'  understood  in  any 

•  WebiU-r. 


164  JUDGE  advocate's  vadk  mf.cum. 

other  senso  tliaii  us  meaning  a  j)o\\'er  to  substitute  a  milder 
punishment  in  place  of  that  decreed  by  the  court  martial;  in 
which  sense  it  would  justify  the  sentence  which  the  President 
proposes  to  substitute*  in  the  case  under  consideration.  "  The 
only  doubt  which  occurs  to  me  as  possible  in  rc<;ard  to  this 
construction  is,  whether  the  j)()wcr  ol'  niitii^atint;  a  ])iinishment 
includes  the  power  of!  changing  its  species;  whether  it  means 
any  other  than  lessenitig  the  quantity,  preservitiji;  neverthe- 
less the  species  of  the  punishment.  Hut  there  is  nothini;  in  the 
force  of  the  terms  in  which  the  ]M)wcr  is  <^iven  that  ties  us 
down  to  so  narrow  a  conetruction.  It  is  ])roper  to  state,  how- 
ever, that  a  different  construction  is  jiraciically  u'iven  to  this 
power  in  the  War  l)ci)artmenl.  for  there  the  power  of  miti- 
gation is  not  understood  as  giving  the  power  to  change  the 
punishment." 

Subsequently,  Mr.  Attorney-General  Berrien  said:   "In  those 
cases  which   by   the  llules  and   Articles  of  war  are 

Mr.  liorricn.  .  ,  ,.  ,  i-i-it^-j  -,    ■  i 

required  to  be  submitted  to  him  [the  rresident]  (and 
the  sentences  of  a  general  court  martial  in  time  of  peace,  and 
extending  to  the  dismission  of  a  commissioned  officer  are 
among  them),  the  whole  proceedings  are  required  to  be  trans- 
mitted to  the  Secretary  of  War,  to  be  laid  before  the  President 
'for  his  contirmation  or  disapproval,  and  orders  in  the  case.' 
The  terms  indicate  an  unlimited  discretion  ;  and  when  it  in 
considered  that  he  is  by  the  constitution  the  depository  of  the 
pardoning  power  (that  this  is  coextensive  with  ever}'  species 
of  jmnisliment,  exce})t  only  in  casi-s  of  inqicachmcnt,  an<l  per- 
haps, also,  for  contempts  against  either  house  of  Congress),  it 
cannot,  I  think,  be  doubted  that  he  has  authority  to  mitigate 
as  well  as  to  confirm  or  reject  the  sentence  ol  a  general  court 
martial,  in  tlu;  exercise  ol'  the  supervisory  power  committed  to 
him  b}'  the  act  for  cstublisliing  rules  and  articles  for  the  gov- 
ernment of  the  armies  of  the  United  States. 


*"  Service  and  rostriiint"  for  "deiith." 


OF   THE    FINAL    PROCEEDINGS. 


165 


"It  would  bo  singular  if  in  the  cases  which  are  entrusted  to 
the  supervision  of  a  subordinate  officer  (see  89th  Article  of 
war)  a  power  should  be  «fiven  him  over  the  sentences  of  a 
court  martial  wliich  is  denied  to  the  commander-in-chief  over 
those  cases  which  are  referred  to  him."* 

The  other  view  of  the  case  is  given  at  some  lenfrtli  by  Cap- 
tain De  Hart,  who.  amony;  otlier  things,  remarks:  paptain 
"  There  are  two  distinct  species  of  punishment  au- 
thorized by  military  laws  which  admit  of  no  degrees  of  sever- 
ity— 1,  deatli ;  2,  cashiering  or  dismission.  These  punishments 
are  evidently  different  in  kind,  and  are  distinctly  marked  by 
the  manner  in  which  the  law  declares  for  what  particular  of- 
fences they  shall  be  inflicted.  It  is  argued  therefore  that  such 
penalties  admit  of  no  mitigation,  but  must  be  executed  or 
entirely  remitted.  *  *  *  Mitigation,  in  its  legal  accepta- 
tion, means  a  less  degree  of  the  same  species  of  punishment, 
and  were  not  such  the  true  meaning  of  the  word  as  there  used, 
it  would  vest  in  the  hands  of  the  reviewing  authority  a  power 
to  substitute  any  kind  of  punishment  which,  in  his  diacretiofi, 
he  might  deem  a  mitigated  one.  If  a  prisoner  were  sentenced 
to  death,  could  it  be  considered  a  legal  mitigation  of  the  pun- 
ishment to  order  the  infliction  of  any  number  of  stripes?  In 
over}'  punishment  admitting  of  degrees  of  intensity  or  sevcrit}'. 
a  initigated  form  can  be  substituted  ;  *  *  thus,  confinement 
at  hard  labor  for  six  months  may  be  changed  in  time  to  two 
months,  etc.  In  such  cases  the  species  and  kind  of  punish- 
ment remain  unchanged ;  and  the  severity  of  the  sentence  is 
mitigated  in  aroordancc  with  law.  Hut  where  a  sentence  is 
passed  which  can  admit  of  no  alteration  without  changing  its 
chnracfrr,  the  only  mcaos  to  shield  the  criminal  is  to  resort  to 
the  power  of  pardoning.     ♦     *     *      It  has  been  said  that  the 

*  Thia  wrmff  to  be  s  confatioa  of  the  «r|n>Bi«ni.  Tlie  poiat  it :  Dom  Um  p«««f 
of  the  Prci>iden»  aathoriftc  him  («  rkangr  ihr  •perir*  t,f  puui»hmrMi,  which  it  i(  con- 
rpdrd  an  officer  ''annot   do,  nnlpi*  to  "  mitigair"  tneanii  the  fame  thing  m»  to  rom- 


166  JUDGE  advocate's  vade  mecum. 

change  of  a  sentence  in  the  manner  referred  to  is  made  by  the 
President  *  *  by  virtue  of  his  ])reroj^ative  as  chief  maj^is- 
trate  of  the  nation.  But  tliis  answer  3'ields  the  entire  question. 
The  President  is  not,  like  the  British  sovereign,  the  fountain  of 
])0\ver,  and  therefore  possesses  no  power  of  the  kind.  All  his 
official  acts  derive  their  authority  i'rom  positive  laws;  and 
prerogative,  or  inlierent  right,  or  constructive  authority,  es- 
pecially in  the  determination  of  questions  of  criminal  justice, 
is  not  acknowledged,  and  would  be  adverse  to  the  principles  of 
our  government.     *     *     * 

"  In  the  arguments  of  the  several  Attorney-Generals  the 
power  of  the  President  to  mitigate  a  sentence,  by  substituting 
a  lighter  punishment  of  a  difterent  species,  has  been  claimed  as 
a  matter  of  expediency  or  convenience,  and  not  as  the  direct 
result  of  any  legal  or  constitutional  power.  *  *  *  But  it 
must  be  observed  that  the  defect  of  the  laws  does  not  cure 
itself ;  and  while  we  must  readily  admit  that  such  power,  Avith 
certain  -limitations,  would  be  rightly  invested  in  the  Executive, 
and  thereby  in  all  cases  enable  him  to  execute  justice  in  mercy, 
still,  as  the  authorit}'  has  not  been  given,  it  cannot  be  exercised. 

"  Another  objection  against  the  exercise  of  such  authority 
under  existing  laws  is  that  it  destroys,  if  conceded,  the  uni- 
formity of  a  legal  rule,  and  therefore  the  law  is  rendered 
capricious.  It  has  never  yet  been  maintained  that  an  officer 
having  the  power  to  pardon  or  mitigate  the  sentence  of  a  court 
martial  could  mitigate  such  sentence  by  substituting  another 
puiiisliinent  of  a  different  species,  but  inilder  character."  *  *  * 

These  views  of  Captain  Do  Hart  arc  considered  sound  and 
well  sustained,  however  they  may  be  opposed  to  a 
])ractice  which  has  in  some  instances  been  sanc- 
tioned by  higli  authority.  Perhaps  uniformity  of  opinion  and 
practice  on  this  subject  will  hardly  be  obtained  until  the  ques- 
tion is  put  to  rest  by  some  more  definite  and  positive  provision 
of  law  than  now  exists. 


OF   THE   FINAL   PROCEEDINGS.  167 

Sec.  267.  When  the  j)roceedings  of  the  court  have  been  dis- 
posed of  by  the  proper  reviewing  authorit}',  the  whole  proceedings 
matter  is  closed;  and  except  in  the  cases  of  appeal 
from  the  decision  of  an  inferior  court,  as  authorized  by  the 
35th  Article  of  war,  there  is  no  ultimate  or  superior  source  to 
which  application  for  further  redress  can  be  made — the  action 
of  the  reviewing  authority  being  final  and  conclusive. 

Sec.  268.  The  officer  who  succeeds  in  command  a  general 
commanding  an  army,  or  colonel  commanding  a  de-  succmMiing 
partment,  succeeds  also  to  the  same  powers  as  his 
predecessor;  his,  therefore,  is  the  duty,  with  its  corresponding 
rights,  of  reviewing  the  proceedings  of  any  court  martial 
already'  ordered,  and  which  ma}*  be  returned  to  him.  But  if 
his  predecessor  has  exercised  the  right  of  reviewal  under  the 
law,  and  has  confirmed  the  sentence  of  the  court,  even  though 
his  action  maj*  have  been  erroneous,  there  is  no  further  power 
of  review,  and  all  that  the  succeeding  officer  can  do  is  to  exer- 
cise, in  a  proper  case,  the  power  of  pardon  or  of  mitigating 
the  sentence. 

Sec.  260.  It  may  not  be  amiss  here  to  repeat  that  the 
record  of  ever}'  court  martial  is  required  by  law  to 

Record. 

be  finally  deposited  in  the  War  Department,  there 
to  be  carefully  preserved.* 

Sec  270.  II.  Execution  of  the  Sentence. — The  explanations 
of  Captain  J)e  Hart  on  this  subject  are  so  clear  and  explicit, 
and  at  the  same  time  so  concise,  that  little  change  or  abbrevia- 
tion will  be  attempted.     He  remarks: 

"  When   the  sentence   awarded    is   corporal  punishment,  the 
troops  of  the  regiment  or  garrison  are  drawn  up  to   p„ppnrai 
receive  the  prisoner,  usually  in  some  retired  spot,  as 
the  ditch  of  an  outwork,  to  which  place  he  is  conducted  by  a 
guard  or  escort.     Fpon  his  arriral  at  the  place  of  punishment, 

•  Pee  »Oth  Article  of  war. 


168  JUDGE   advocate's    VAUE   ftlECUM. 

the  iKlJutant  or  other  stalV  oftieer  reads  the  sentence  of  the 
court,  ami  its  approval ;  tlic  prisoner  durin^i^  the  time  occupied 
in  rcadiiii;  Htaiidin<^  uncovered,  and  advanced  a  couple  of  paces 
in  front  of  the  escort.  Jlc  is  then  ordered  to  strip  to  the  waist, 
and  is  tied  to  u  machine  called  a  triangle,  which  is  formod  of 
three  legs  connected  hy  a  bolt  at  the  top  and  separated  about 
four  feet  at  tiie  bottom.  A  bar  is  fast*)ne^l  at  a  proper  lieight 
to  two  of  tJje  legs,  against  wiiich  the  prisoner  may  lean  his 
breast,  who  is  tied  by  the  ankles  to  the  legs  of  the  machine, 
and  Ills  hands  secured  above.  Sometimes  ho  is  lashed  to  a  gun- 
wheel.  The  strokes  with  the  cat-o'-nine-tails  are  delivered  upon 
the  bare  shoulders,  by. the  drummer  or  trumpeter.  The  drum 
or  trumpet-major  counts  each  lash,  giving  the  executioner 
sufficient  time  to  pause  between  the  strokes  equal  in  duration 
to  three  paces  in  slow  time,  which  is  marked  by  taps  of  the 
drum  or  by  the  oxe<iutioner  encircling  the  cat  around  his 
head.  A  medical  officer  is  invariably  required  to  attend,  to 
superintend  the  jmnishment.  Should  any  appearances  indicate 
the  propriety  of  suspending  tlie  infliction,  the  medical  officer 
reports  to  the  senior  officer  on  parade,  who  gives  orders  accord- 
ingly. It  is  well  understood  that  to  ])rolong  the  punishment 
beyond  the  usual  time  woujd  be  highly  inipi-opcr,  and  subject 
the  officer  who  authorized  or  caused  such  to  be  do«io  to 
charges,  AH  nieans  used  to  cause  greater  pain  to  the  sutierer 
than  what  must  necessarily  follow  the  infliction  by  the  usual 
instrument  of  puuishniiMit  are  strictly  forbitlden,  and  there- 
fore the  preparation  of  the  cats  b}-  steeping  them  in  lime,  or 
washing  them  in  salt  and  water  during  the  punishment,  would 
not  he  countenanced.  It  is  a  well  known  ))rinciple  that  puu" 
ishment  is  shorn  of  its  efficacy  by  a  resort  to  cruel  and  inliu^ 
man  means,  and  the  criminal  in  such  cases  is  no  longer  viewed 
by  the  bystanders  as  a  malefactor,  but  is  sympathized  with  as 
an  oppressed  and  wronged  creatui-e.  During  the  infliction  of 
the  punishment  it  is  necessary  that  the  drum-major  should  see 


OP    THE    FINAL    PROCEEDINGS.  169 

that  tho  strands  of  the  cat  are  not  entangled,  so  as  to  prodace 
too  heavy  a  blow;  they  should  be  kept  separated,  and  if  neces- 
sary woahed  in  water. 

'^Tlio  cat-o'-nine-tails,  the  usual  instrument  of  floc^jring,  is 
composed,  as  its  name  imports,  of  nine  lashes  of  whip-cord, 
each  knotted  in  three  places,  one  knot  being  near  the  end  ;  tho 
laches  are  sixteen  to  eighteen  inches  long,  and  fastened  to  a 
handle  of  wr>od  of  about  a  drumstick's  length.  Common  whip- 
cord is  the  ihickness  m Mowed  ;  a  larger  <le:«crjption  would  too 
much  bruise  and  lacerate  the  fiesli  by  its  weight. 

"It  is  a  rule  for  the  regulation  of  corporal  punishment  that 
no  greater  amount 'shall  he  inflicted  than  what  the  prisoner  is 
able  to  undergo  at  one  time.  Should,  therefore,  any  number  of 
stripes  dess  than  what  the  sentence  prescribes  be  more  than 
could  be  given  at  any  time  in  -reference  to  the  phj'sical  ability 
of  the  jirisoner  to  bear,  such  number  must  be  considered  as 
remitted,  and  the  punishment  complete.     *     *     * 

Sec.  271.  Capital  punishment. — "When  capital  punishment  is 
to  bei  inflicted,  great  ceremony  is  made  of  special  ob-  p  'j,,j 
servance.  When  a  criminal  is  put  to  death  b}'  shoot-  '""""  "'^°'' 
ing,  the  troops  to  witness  the  execution  are  formed  on  three 
sidos  of  the  sqnare.  The  prisoner,  escorted  by  a  detachment, 
is  brought  on  tho  ground.  The  provost  marshal  leads  the 
procession,  followed  by  tho  band  or  field  music  of  the  regiment 
to  which  the  convict  belongs,  drums  muftled,  playing  the  dead 
march.  The  party  detailed  to  tire,  usually  consisting  of  eight 
to  twelve  men,  comos  next,  then  four  bearers  with  the  coffin, 
and  i  in  mediately  after,  the  prisoner,  attended  by  a  chaplain; 
the  escort  closes  tho  roar.  The  procession  passes  in  front  and 
along  the  three  sides  of  tho  square,  facing  inward.  On  arriv- 
ing ut  the  flank  of  cswh  regiment,  the  band  of  the  regiment 
plii3'n  the  dead  march,  and  continues  until  its  front  is  cleared. 
When  the  procession  has  reached  the  open  space  the  music 
•ceases;  the  prisoner  is  placed  on  the  fatal  spot  where  the  coffin 


no  JunoE  advocate's  vade  mecum. 

has  boon  put  liown,  aii<l  tin-  cliarj^e,  sentonco,  and  order  for  iho 
execution  read  aloud.  Tlio  cdiaplain  havintj  engai^i'd  in  jiraycr 
with  the  conik'inned.  retires  [as  soon  as  this  cxcreiso  is  over]. 
The  execution  party  forms  at  about  six  paces  from  the  pris- 
oner, and  the  word  is  <^iven  by  the  provost  marshal.  When 
the  firing  party  forms,  the  escort  moves  by  tlie  rii^lit  flank  and 
takes  position  in  rear  of  that  parly  at  ordered  arms.  Slioubl 
the  fire  not  prove  instantaneously  fatal,  it  is  the  duty  of  the 
jirovost  marshal,  or  a  file  which  has  been  reserved  for  such 
•  luty.  to  complete  the  sentence.  The  execution  being  over,  the 
troops  break  into  column  i)y  the  right  and  move  past  the 
corpse  ill  slow  time. 

''When  death  by  hanging  is  to  he   inflicted,  the  trooj>s  are 

fornu'il  in  square  on  the  gallo\v><  as  a  centre.     The  firis- 

oner,  with  the  escort,  having  arrived  at  their  respec- 
tive places,  the  charge,  sentence,  and  warrant  are  read  aloud, 
and  the  executioner,  under  the  direction  of  the  provost  mar- 
shal, performs  his  ollice.  The  troops  niareh  otl'  the  ground  at 
common  time;  the  provost  marshal,  witli  the  escort,  remaining 
until  the  body  is  taken  down. 

Sec.  272.    Degradation. — "Soldiers  sometimes  for  disgraceful 

conduct   are   discharged  Ihe   service   with   ignominy. 

A  sentence  ot  this  l<ind  is  executed  as  tollows  :  the 
troops  being  assembletl.  the  offender  is  brought  forward  in 
charge  of  a  guard,  when  the  offences  of  which  he  has  iteen 
found  guilty,  together  with  the  sentence  and  its  a])]»roval,  are 
read.  The  facings,  etc.,  of  his  dress  are  stripped  otV,  and  he  is 
then  trumpeted  or  drummed  out  with  the  'rogue's  march,' 
through  the  barracks  or  quarters  of  the  corps. 

Sec.  273.     Imprisonment. — "  When  a  soldier  is  sentenced  to 

close  confinement  in  the  cells,  if  sickness  should  re- 

Iiii))rison-  • 

""""'  quire  him   to  be  removed  to  the  hospital,  he  would 

upon  recovery  to  health  be  returned  to  imprisonment  for  the 
remainder  of  his  sentence;  but  his  time  in  hospital  must  be 


OF    TIIF,    FINAL    PROCEEDINGS.  171 

computed  as  part  of  liiw  imprisonment.  When  in  liospital  lie  is 
deemed  a  prisoner. 

"A  commandinir  officer  could  not  be  justified  in  releasing 
prisoners  under  sentence,  allowing  them  to  do  duty  in  pres- 
ence of  the  enemy,  or  at  other  times,  and  afterward  inflicting 
the  punishment. 

Sec.  274.  "As  there  arc  no  particular  places  provided  for 
the  imprisonment  of  soldier.s   bj''  sentence  of  courts 

I'snal    plHC* 

martial,   it  is   never   stated    where    the   confinement  of  imprison- 
ment. 

shall  be  undergone,  but  is  left  to  the  commanding 
officer  of  the  garrison  wherever  the  prisoner  may  be  (unless 
specially  ordered  to  be  removed  to  another  station)  to  carry 
out  the  sentence  bj'  the  means  within  his  control.  It  conse- 
quently does  not  interfere  with  the.  rigiit  to  change  the  place 
of  imprisonment,  should  the  regiment  be  removed,  or  other 
causes  render  it  necessary.  In  such  cases  for  ordinary'  close 
confinement,  the  time  occupied  in  effecting  the  change  of  place 
would  be  counted  in  the  sentence ;  but  when  solitary  confine- 
ment with  low  diet  is  the  sentence,  the  ]irescribed  number  of 
days  according  to  the  judgment  of  the  court  must  be  fulfilled. 
Sec.  27.").  "  In  the  rigid  execution  of  sentences  awarded  by 
military  courts  is  the  most  effectual  means  of  preventing 
offences.  *  *  *  Jn  a  system  wliich  should  combine  precis- 
ion and  certainty  for  the  jurisprudence  of  the  army, 
would  the  country  find  and  secure  the  high  interests  ^"'hpMw 
of  good  order  and  economy;  interests  which  wliile 
they  would  n<^»t  stand  in  opposition  to  any  personal  rights 
or  humane  government,  would  be  doubly  appreciated  by  being 
associated  and  connected  with  all  the  lofty  and  enduring  bene- 
fits which  other  nations  have  gained,  or  hope  to  acquire  bj-  a 
woll  regulated  army." 


C'llAriLK    \'li[. 


OF   THE    REDRESS   OF   ^VRONGS. 


Sec.  27<).  Wo  are  now  to  cxainine  the  nu'ans  j)rovided  for 
the  I'cdress  of  wrongs  agaiust  oftiters  and  soldiers;  and  it  will 
be  convenient  to  do  no,  in  regard  — 

I.  To  new  or  second  trials;  and 

II.  To  the  particular  mode  of  redress  furnished  in  tlu'  Arti- 
cles of  war. 

There  are  certain  cases  in  which  it  would  be  jji-oper  to  order 

a  new  trial;    and  this  is  obviously  one  means  of  re- 
New  trial.  .  ...  ,,  ., 

dressing  wrongs  in    military   as   well    as   civil   courts. 

Under  what  circumstances  then  ma^-  a  new  trial  bo  had  heforQ 

a  court  martial  ? 

Sec.  277.     It  is  to  be  observed,  in  the  tirst  i)lacc,  that  a  new 

trial  can  never  be  had  whore  the  prisoner  has  once 

Not  after 

»c<iuittfti.  [,^.^.„  ,i„]y  acquitted;  for,  says  Blackstone, "there  hath 
been  yet  no  instance  of  granting  a  new  trial,  where  the  prw- 
oner  was  acquitted  upon  the  tirst." 

"After  an  acr/u/Y^f/ of  the  defendant,"  says  Mr.  Wharton.*  "in 
an  iiKlicliiK'iit  lor  cillu-r  a  leloiiy  or  mistlomeaiior,  there  can  in 
general  he  no  new  trial,  though  the  result  bo  produced  by 
error  of  law  or  misconception  of  fact.'"  The  few  exceptions 
which  have  occurred  to  this  rule  are  all,  it  is  believed,  confined! 
to  cases  where  frawl  was  practised  in  procuring  the  acquittal. 

To  justify  ft,  new  trial,  thorelbre,  there  must  tirst  have  been  a 
convict i.on-\  of  the  party  by  a  court  martial,  where  any  judg- 
ment has  been  pronouncetl. 


*  Crim.  Law,  9S2.  f  See  sec.  ^80. 


OF    THE    REDRKS8    OF    WRONGS.  173 

Sec.  278.     If  the  findings  of  the  court  were  based  upon  irrel- 
evant matter,  or  the  testimony  of  incompetent  wit- 

Wlicii     new 

nesses,  the  reviewinij  authority  may  either  confirm  trial  may  !>• 
the  proceedings,  and  exercise  the  power  of  pardon  in 
a  proper  case,  or  he  may  award  a  new  trial,  as  ma}'  be  deemed 
best.  Mr.  Wirt  claimed  for  the  President  of  tiie  United  States 
the  power  to  order  a  uqw  trial  under  the  65th  Article  of  war, 
requiring  the  proceedings  to  be  submitted  to  him  for  his  con- 
firmation or  disapproval,  and  orders  in  the  case;  "the  last  words 
(sa3'8  Mr.  Wirt)  having  no  other  just  interpretation  than  tho 
acknowledgment  of  such  authority.  In  revising  a  sentence 
and  ordering  a  new  trial,  the  President  is,  however,  to  be  gov- 
erned by  the  same  considerations  which  would  determine  a 
superior  court  of  law  in  an  apj)eal  from  the  inferior  civil 
courts." 

Sec.  279.  So,  also,  where  the  constitution  of  tho  court  has 
been  defective,  or  the  court  has  assumed  jurisdiction  p^rjeftctin 
improperly,  as  their  proceedings  could  not  legally 
affect  the  accused,  a  new  or  second  trial  might  very  properly 
be  ordered.  "A  judicial  body,  which  is  forbidden  b}-  law  to 
entertain  jurisdiction  of  certain  offences,  and  of  particular  per- 
sons, cannot  most  assuredly  b}-  neglect  and  non-obsei'vanee  of 
the  injunction  restrain  another  tribunal  in  the  exercise  of  its 
legal  powers.  Such  a  principle,  if  admitted,  would  lead  to  the 
grossest  abuses,  and  weaken  the  securities  against  crime,  and 
the  foundations  of  criminal  justice.  The  language  of  the  fun- 
damental law,  both  for  this  country  and  for  England,  is  tliat 
'no  person  shall  be  subject  for  the  same  offence  to  be  twice  piit 
in  jeopard}'  of  life  or  limb.'  And  how  c^n  a  pei*son  be  put  in 
jeojtardy  ('legal  jeopardy ')  by  the  action  of  a  court  which  ba» 
no  |>ower  to  enforce  its  mandate  ?  An  acquittal  or  conviction 
in  law  signifies  a  Irgal  acquittal  or  conviction,  and  the  judg- 
ment of  a  court  having  no  power  to  try  cannot  <leclarc  such 
acquittal  or  conviction."      ♦     *     *     "It  is. not  sufficient  that 


174  JUDOE  advocate's  vadk  mecum. 

the  court  wliich  notices  the  charge  or  criminal  lieyund  the  pale 

of  itis  jurisdiction  should  in  itself  be  a  legal  court  to  place  the 

prisoner  beyond  the  possibility  of  another  trial,"  for  a  court  of 

inferior  and  inadequate  jurisdiction  may  yet  be  a  legal  court; 

"  but  it  must  have  full  authority  for  its  proceeding  to  insure 

such  a  consequence."* 

Sec.  280.     It  was  said  above  that  to  justify  a  new  trial  there 

must  have  been  a  conviction  of  iho  party  accused ;  but  this  of 

course  only  refers  to  cases  in   which  the  court  pro- 
May  be  Rftor  ''  ' 

conviction      eocds  to  judgment  and  sentence:  for  it'  in  the  instances 

and  Jiiug-  ''        ~  ' 

"""'■  adverted  to,  such  as  a  want  of  jurisdiction,  illegality 

in  the  constitution  or  composition  of  the  court,  or  in  the 
charges,  the  court  should  adjourn  or  be  dissolved  for  any  such 
defects,  without  findings  and  sentence,  it  is  conceived  the 
party  would  still  be  subject  to  a  new  or  second  trial,  lie 
could  not,  surely,  interpose  the  Articles  of  war,  and  plead  a 
former  trial,  for  in  a  legal  sense  he  had  not  been  tried ;  nor 
could  he  allege  that  he  had  once  been  \n  jeopardy,  for  this  could 
not  arise  till  the  trial  was  finished;  tjor,  indeed,  does  this  term 
mean  anything  more  than  acquittal  or  conviction,  and  the  judg- 
ment of  the  court  thereon.^ 
Sec.  281.  The  application  for  a  m-w  trial  is  not,  as  in  cases 
at  law,  j)resented  to  the  court,  but  must  be  made  to 

Howupjillcii-  .  1.1  II 

tion  for  new  the  authority  which  convened  tlie  court,  or  to  a  supe- 

trial  iH  madu. 

rior  source,  for,  says  l)e  Hart,  "  where  a  prisoner  has 
been  found  guilty  contrary  to  evidence,  or  upon  irrelevant  or 
improper  testimony,  a  new  trial  may  be  granted  as  an  act  of 
mercy,"  and,  it  may  be  added,  as  an  act  of  justice  also. 

Sec.  282.     II.  Of  the  particular  mode  of  redress  tor  wrongs 
provided  in  the  Articles  of  war: 

1.  As  to  the  wrongs  of  officers. 

2.  As  to  the  wrongs  of  soldiers. 


•De  Hart,  208.  f  Jndge  Wagliington,  4  Wash.  C.  C.  R.,  402. 


OF    THE    RKDRESS    OF    WRONGS.  175 

The  34th  Article  of  war  provides  that  ''  if  imy  officer  shall 
think    himself  wron^jjed  hy   iiis   colonel,  or   tiie  com-    341),  ^^riicie 
manding  officer  of  the  regiment,  and  shall,  upon  due 
application  being  made  to  him,  be  refused  redress,  he  m;iy  com- 
plain to  the  general  commanding  in  the  state  or  terri- 

1      II    I  •  »     •  1  Ab toofficem. 

tor}'  where  such  regiment  shall  be  stationed,  in  order 
to  obtain  justice;  who  is  hereby  required  to  examine  into  said 
complaint,  and  taUe  projxM-  measures  fur  redressing  the  wrong 
complained  of,  and  transmit,  as  soon  as  possible,  to  the  Depart- 
ment of  War  a  true  state  of  such  complaint,  with  the  proceed- 
ings had  thereon." 

Tiie  remedy  here  pointed  out  is  exceedingly  simple  and  easy. 
It  will  be  observed  that  it  applies  to  inferior  officers,  who,  upon 
feeling  themselves  aggrieved,  may  complain  first  to  the  colonel 
or  commanding  officer  of  the  regiment.  This  complaint  should 
be  in  writing,  and  couched  in  brief,  pertinent,  and  respectful 
terms,  setting  forth  the  particulars  of  the  grievance,  and  a.sking 
for  its  redress.  If  this  application  be  either  refused  or  im- 
properly neglected,  the  party  will  tiien  be  justified  in  appeal- 
ing in  the  same  manner  to  the  commanding  general  referred  to 
in  the  Article.  This  appeal  must,  however,  be  made  through 
the  regular  channel,  that  is,  the  commanding  officer  of  the  regi- 
ment, who  is  thus  furnished  the  opportunity  for  a  review  of 
his  former  course  or  decision,  or  of  making  any  necessary  ex- 
planation on  the  subject  in  forwarding  the  complaint  to  the 
general.  It  should  be  recollected,  too,  that  the  second  com- 
plaint must  be  the  name,  or  substantially  the  same,  as  the  first. 

Sec.  283.     Although,  as  has  been  elsewhere  remarked,  the 
general   commanding   is   required   by   the  Article  to 
take  proper  Tueasurcs  for  redressing  the  wrong,  and  Renrrai 

cumitiandinit. 

to  transmit  the  complaint,  with  the  procedings  there- 
on, to  the  War  Department,  so  that  he  cannot  arbitrarily  dis- 
miss it  without  consifleration,  ntill.  as   De  Hart    observes,   "if 
the  charge  laid  should  be  incapable  of  proof,  or  the  grievances 


176  JUDOE  advocatf/s  vade  mf.cum. 

Htated  not  amount  to  a  crime  or  offence,  at  least  of  military 
cofijnizaneo,  it  cannot  l)e  supposed  it  was  intended  to  trouble 
the  department  with  the  report,"  and  "  this  conclusion."  he 
adds,  "is  the  more  truthful,  inasmuch  as  the  complainant  is 
not  thcrcl)}'  debarred  of  either  the  rijjht  or  means  of  preferring 
his  complaint  a;j;ain  to  the  highest  aulhorily." 

Sec.  284.     The  35th  Article  further  declares   that   "  if  any 
«.i  1  .<  1     inferior  officer  or  soldier  .sliall  think  himself  wronged 

35th  Article  •- 

"'^"■"'-         by   his  captain    or   other   officer,   he    is    to  complain 

thereof  to    the   commanding  officer  of   the    regiment,  who  is 

hereby  required  to  summon  a  regimental  court  mar- 

Wronps  of  ''  ^  ^ 

iiif.rior ..f-     ^^^.^\  fyj.  ^juj  doiug  justice  to  the  complainant;   from 

fleers   and  "   •'  ' 

HuicJicn..  vi'iuch  regimental  court  martial  either  party  m:»y,  if 
he  think  himself  still  aggrieved,  apjjcal  to  a  general  court  mar- 
tial, iiut  if,  upon  a  second  hearing,  the  appeal  shall. 
suminono,!.  .jpj,^.^,.  ^u'xatious  iind  gro^ituflcss,  the  person  so  a]ipcal- 
ing  shall  be  punished  at  the  discretion  of  said  court  martial." 
Commenting  upon  this  Article,  Captain  I)e  Hart  remarks 
that  it  was  originally  adopted  fron^  tiie  British  Articles  of  war 
in  177(),  and  subsequently,  in  18U(),  was  varied  in  its  terms  by 
the  omission  of  the  words,  '*  comtnandiiig  the  troop  or  com- 
pany to  wliicii  he  Ijeloiigs;"  but  this  he  regards  as  not  varying 
the  import  or  iiiti-nt  of  the  Article  in  the  smallest  degree.  He 
«u.   .  r..      then    i)roceeds,  in   another   place:     "The   regimental 

Object  of  the  I  '  '  ~ 

^""^''  court  martial   here  referred   to  is  solely  for  the  pur- 

pose of  doing  justice  to  the  comi)lainaiit,  and  ]iunishmeiil  forms 
no  pai-t  of  its  office,  inasmueli  as  a  <'oui-t  of  this  description  is 
not  of  ade(iuate  powers  or  jurisdiction  to  sit  in  judgment  upon, 
or  try  a  commissioned  oliicer,  being  limited  in  this  resjjcct  by 
the  67th  Article  of  war.  Nor  is  it,"  he  continues,  "a  court  of 
inquiry,  with  powers  such  as  are  contemplated  liy  the  DOth 
Article  of  war  j  and  this  because  courts  of  inquiry  can  only  be 
ordered  by  the  President,  or  by  the  commanding  otiicer  duly 
authorized  to  appoint  courts  of  inquiry  when  demanded  by 


OF   THE   REDRESS    OF    WRONGS.  177 

the  accused.  But  tlic  regimental  court  martial,  now  under 
consideration,  is  a  body  organized  for  special  purposes,  and 
therefore  much  restricted  in  the  range  or  scope  of  its  powers, 
and  confined  in  its  investigations  to  a  particular  species  of 
wrong. 

"  These  wrongs  must  arise  out  of  the  relative  connection  of 
the  commanding  officer  of  a  troop  or  company  and  a 

1  J.  II  .  .  rni  1  •        •        11         • /»    Nature  of 

soldier   belonging  to  it.     Ihej'  relate  principally,  if  wrongs tobe 

redressed. 

not  entirely,  to  matters  of  allowances,  and  have  refer- 
ence to  clothing,  pay,  messing,  repairs,  and  all  things  belong- 
ing to  what  is  understood  as  the  interior  economy  of  a  com- 
pany ;  that  is,  they  have  reference  to  matters  of  account 
between  the  captain  or  commander  of  the  company  and  the 
soldier.  This  is  the  description  of  the  wrongs  contemplated 
by  the  Article,  and  therefore  accusations  by  a  complainant, 
impugning  the  character  of  an  officer,  would  be  foreign  to  the 
view  of  the  article,  or  injuries  growing  out  of  the  acts  of 
other  persons,  not  so  related  (that  is,  commanding  officer  of  a 
company  and  soldier  belonging  to  it),  could  not  be  considered 
by  this  regimental  court  martial,  but  would  necessarily  be 
prosecuted  by  the  usual  means  afforded  for  the  administration 
of  justice  to  the  army.     *     *     * 

"  The  words  of  the  Article,  inferior  officer  or  soldier,  include 
all  persons  belonging  to  the  troop  or  company  under  the  rank 
of  commissioned  officer,  and  them  only;  and  the  words  (after 
the  word  captain)  'or  other  officer,'  signify  or  other  officer 
commanding  the  troop  or  company.     *     *     * 

"  The  wrongs  to  be  redressed  must  be  of  such  a  nature  as 
grows  out  of  the  relative  connection  of  the  officer  command- 
ing the  company  with  the  soldier  belonging  to  it,  and  have 
reference  to  some  right  of  the  latter  improperlj-  restrained,  or 
some  abuse  committed  by  the  captain  or  other  officer,  or  by 
him  permitted  to  another;  and  7?u7(7ary  offences  of  which  the 
laws  and  customs  of  the  sejvice  take  cognizance  would  not  be 
12 


178  JUDGE  advocate's  vade  mecum. 

a  legitimate  subject  for  inquiry  by  8uch  court  for  'doiug  jus- 
tice to  the  complainant.'  Such  matters  must  be  referred  to  a 
superior  officer,  so  tliat  the  proper  court  may  be  convened  for 
the  trial  and  puuishnient  of  the  accused." 

Sec.  2H5.    2.  llic  wrongs  of  soldiers. — The  35th  Article,  it  will 
be  observed,  applies  to  soldiers  as  well  as  inferior  offi- 
cers.    And  the  Hanie  liniitations  as  to  the  particular 
description  of  wrongs  to  be  redressed   are  to  be  regarded  in 
both  cases.     The  court  is  to  inquire  into  wrongs  intlicted  by  or 
suffered   from   the  captain  or   other  officer   commanding   the 
troop   or  company   to   which   the   soldier  belongs,  and  none 
others.     The  complaint  should  bo  addressed  to  the  captain  or 
officer  commanding  the  company,  and  if  redress  is  denied,  or 
uni*easonably  neglected,  it  may  then    be  submitted  (through 
the  captain,  however,  for   reasons  already  explained,)  to  the 
commanding  officer  of  the  regiment,  whose  duty  it  is  immedi- 
ately to  summon  a  regimental  court  to  examine  the  complaint, 
.and  do  justice  to  the  complainant. 

If  the  decision  of  the  court  is  adverse  to  the  officer  against 
whom  the  complaint  is  lodged,  justice  must  at  once  be  done 
the  complainant,  and  it  is  the  duty  of  the  commanding  officer 
of  the  regiment  to  enforce  the  decision  of  the  court. 

Sec.  286.  Appeals. — The  Article  of  war,  il  will  be  remem- 
bered, provides  that  if  either  party  is  dissatisfied 
with  the  decision  of  the  court  an  appeal  ma^-  bo 
made  to  a  general  court  martial;  this  privilege,  therel'oro, 
extends  to  soldiers  as  well  as  officers.  But  should  the  officer 
comj)lained  of  refuse  obedience  to  the  inferior  court,  and  yet 
fail  or  decline  to  appeal  from  its  decision,  obedience  may  be 
enforced  by  the  authority,  as  just  stated,  of  the  commanding 
officer,  or  on  failure  of  that,  by  the  ordinary  procedure  before  a 
higher  court,  in  which  charges  against  the  offending  party  may 
be  regularly  preferred. 

Sec.  287.     Either  party  may  appeal,  but   if,    upon   a   second 


OF  THE  REDRESS  OF  WRONGS.  179 

heannff,  their  appeal  appears  to  the  court  to  have 

°  ^^  ^*  Either  party 

been  ''vexatious  and  groundless,"  the  appellant  is  to  n"»y  «ppcai- 
be  punished  at  the  discretion  of  the  court.  This  discretion 
to  punish,  however,  must  be  "tenderly"  and  cautiously  eni- 
plo3'ed,  and  "only  where  there  is  no  probable  cause  for  the 
appeal." 

This  is  the  only  case,  observes  De  Hart,  in  which  an  appeal 
from  the  decision  of  a  military  court  can  be  made.  The  law 
thus  has  evinced,  he  adds,  "  a  particular  consideration  and 
jealousy  for  the  rights  and  satisfaction  of  inferior  officers  and 
soldiers,  and  has  made  an  exception  to  the  ordinary  course 
of  military  trials,  which  distinguishes  it  in  a  very  marked 
manner.  It  not  only  authorizes,  to  some  extent,  a  review  of 
the  proceedings  in  the  first  instance,  but  secures  the  advan- 
tages of  a  new  trial,  independent  of  any  previous  examination, 
and  therefore  puts  the  part}^  in  a  situation  to  cure  all  the 
inconveniences,  errors,  and  deficiencies  of  testimony  which 
have  marked  the  progress  of  the  first  complaint,  and  rendered, 
very  probably,  an  appeal  necessary." 

Sec.  288.  The  mode  of  proceeding  before  the  regimental 
court  is  described  by  the  same  author,  substantially  as 

/.  11  _  McKic  of 

lOilOWS  I  proceeding 

before  a  re- 

The  court  and  parties  being  duly  assembled,  the  (riraent«i 
order  convening  tlie  court  is  read,  and  the  complain- 
ant and  defendant  are  asked  if  they  have  any  objections  to 
any  member  of  the  court.  These  questions,  and  the  replies,  are 
noted  on  the  record.  The  court  is  then  sworn.  The  com- 
plainant first  states  his  case,  and  proceeds  with  his  proofs. 
The  defendant  is  next  heard,  and  his  witnesses.  Neither  party 
can  V>c  sworn;  but  no  witness  is  examined  except  under  oath. 
When  the  parties  and  their  evidence  have  been  heard  the 
court  is  closed  for  deliberation,  and  its  opinion,  when  given,  is 
dulj'  recorded. 

Sbc.  289.     When  an   appeal   is  taken   from  the  decision  of 


180  JUDGE  advocate's  vade  mf.cum. 

this  court,  as  permitted  by  tiie  Article  of  war,  the 

ApppAl    from  3-  •      •  rw> 

tiiec.uri.pr.K  procecding  18  in  effect  a  new  trial;  and  hence  nothing 

coe<iitipi  on. 

that  has  transpired  in  the  regimental  court  is  to  be 
taken  as  evidence  in  the  superior  court;  therefore  the  former 
record  cannot  be  read,  but  tiie  witnesses  must  be  examined 
aiK'w,  and  tlie  entire  proceedings  conducted  without  regard  to 
anything  that  has  occurred  on  the  former  trial.  No  one  ap- 
pears as  prisoner  in  cither  court. 

De  Hart  explains  the  mode  of  proceeding  in  cases  of  appeal 
in  the  following  terms  :  "  The  court  having  assembled,  and  the 
appellant  and  respondent  being  present,  the  order  for  the  court 
is  read,  ^oth  ])artie8  have  the  right  of  challenging,  and  the 
Judge  Advocate  puts  the  usual  question  on  this  point,  first  to 
the  appellant,  and  afterward  to  the  respondent,  minuting 
such,  and  the  respective  answers  on  the  proceedings.  The 
members  and  the  Judge  Advocate  are  duly  sworn.  The  state- 
ment of  alleged  wrongs  by  the  appellant  is  read  and  recorded, 
and  that  party  first  addresses  the  court,  and  lays  what  he  con- 
siders his  wrongs  before  it,  and  exhibits  whatever  proof  ho 
may  possess  in  support  of  his  declarations.  The  appellant 
must  not  in  any  case  bo  sworn.  The  witnesses  who  are  called 
by  either  ])arty  give  evidence  on  oath.  When  the  appellant's 
case  is  fully  before  the  court,  the  respondent  is  allowed  to 
reply  to  it,  by  offering  such  evidence  as  he  thinks  necessary, 
but  the  respondent  himself  should  not  be  sworn,  unless  re- 
quired to  be  so  by  the  appellant,  or  when  the  court  deem  it 
necessary  that  he  may  depose  the  facts.  The  subject  having 
been  thus  developed,  the  court  deliberates  on  the  evidence,  and 
gives  its  opinion  thereon. 

Sec.  2!)U.  "  This  opinion  consists  in  the  simple  declaration 
that  the  apj)cllant  either  has  substantiated,  or  failed 
court    on      to  substantiate  the  grievanees  complained  of. 

appeal. 

"  And  should  the  coui't  be  further  of  opinion  that 
the  appeal   is  vexatious  and  groundless,  such  fact  would  be 


OF    THE    REDRESS    OP    WRONaS.  181 

Stated,  and  the  court  would  then  proceed  to  pass  such  judg- 
ment upon  the  appellant  as  the  circumstances  of  the  trial 
would  warrant." 

Sec.  291.     In  concluding  this  subject,  we  have  only  to  re- 
mark  that   no   complaints   are  contemplated  by  the 

'■  X  ^  Redrpss  only 

Articles  of  war  but  sufch  as  immediately  concern  the  f,f  p'J""^^® 
parties  themselves.  A  complaint  by  way  of  informa-  ^""""•^^  • 
tion,  therefore,  cannot  be  considered  and  noticed  in  this  man- 
ner. All  complaints  or  applications  for  redress  under  these 
Articles  must  moreover  be  presented  singly,  that  is,  by  the  in- 
dividual, and  must  not  be  joined  together  either  for  effect  or 
convenience,  the  design  of  the  law  being  to  afford  a  speedy 
and  convenient  remedy  for  particular  wrongs  as  they  sever- 
ally occur,  and  in  no  sense  to  encourage  combinations  for  the 
injury  or  annoyance  of  particular  parties. 


Chapter  IX. 


OF    EVIDENCE, 


Sec.  292.  The  law  of  evidence,  as  applied  in  inilitaiy  trials, 
Avill  form  the  next  and  last  subject  of  our  inquiries.  It  will  be 
impossible  to  do  more  than  present  a  summary  of  the  leading 
rules  and  principles  on  this  interesting  topic,  and  we  must 
therefore  refer  the  reader,  for  all  that  may  be  required  beyond 
these,  to  the  various  works  on  this  branch  of  the  law,  which 
are  generally  accessible  to  all. 

Sec.  293.     It  is  well  to  observe  in  the  outset  that  as  courts 

martial  are  constituted  both  judge  and  jury,   they 

judge  law      are,  of  coursc,  to  determine  questions  of  law  and  fact; 

and    tact. 

hence  pleadings,  designed  to  separate  these  subjects 
and  disputed  from  admitted  facts  in  the  ordinary  tribunals,  are 
not  resorted  to  in  military  courts,  and  wo  shall  have  no  occa- 
sion to  advert  to  various  qualifications  and  distinctions  of  the 
law  in  this  connection,  which  might  otherwise  be  deemed 
important.  For  example,  on  an  indictment  for  larceny,  what 
particular  facts  constitute  a  felonious  asportation  is  a  question 
of  law,  while  the  province  of  the  jury  only  is  to  determine 
whether  the  particular  facts  charged  have  been  proved.  But 
in  a  trial  before  a  court  martial,  for  theft  or  murder,  for  in- 
stance, there  is  no  necessity  for  a  formal  sifting  and  separate 
decision  of  the  issue.  The  8imj)le  (question  is  one  of  guilt  or 
innocence,  to  bo  decided  by  the  same  tribunal,  who  are  judges 
of  the  facts  to  be  proved,  and  also,  under  the  laws,  of  the  legal 
consequences  of  such  proof 


OF   EVIDENCE. 


183 


It  will  be  convenient  to  examine  the  subject  now  before  us, 
under  three  divisions,  as  follows : 

I.  Evidence  in  general. 

II.  Direct  and  positive  evidence. 

III.  Circumstantial  evidence. 

Sec.  294.     I.  Of  evidence  in  general. — Evidence  is  defined  by 
Mr.  Starkie  to  be  that  which  is  legally  submitted  to       Kvidcnra 
a  jury,  to  enable  them  to  decide  upon  the  questions 
in  dispute  or  issue,  as  distinguished  from  all  comment  or  argu- 
ment. 

Sec.  295.     There  are  degrees  of  evidence,  from  that  which 
merely  produces  doubt,  to  that  which  satisfies  the 

Degrees  of. 

mind  of  the  existence  or  truth  of  a  fact  in  dispute. 
But  even  the  most  direct  and  positive  evidence  can  produce 
nothing  more  than  a  high  degree  of  probability,  such  as  may 
amount  to  moral  certainty.  From  the  highest  degree,  it  may 
decline  to  a  mere  pi-eponderancc  of  assent  to  a  particular  ftvct. 
This  distinction  between  full  proof  and  mere  proponderance  of 
evidence  is  important.  It  is  essential  to  all  convictions  that 
guilt  should  be  fully  established,  and  no  weight  of  preponder- 
ant evidence  is  sufficient,  unless  it  generate  full  belief,  to  the 
exclusion  of  reasonable  doubt.* 

Sec.  29G.  There  is,  therefore,  a  manifest  distinction  between 
evidence  and  proof;  the  former  being  the  particular  j„|,j.j,^,j^^ 
means  or  mode  by  which  the  latter  is  secured.  A  fact  ||[J*7"and 
is  said  to  be  proved  by  evidence  which  induces  no 
doubt  of  the  existence  of  such  fact.  Hence,  no  proof  of  any 
fact  can  be  made  or  attempted  except  by  means  of  the  estab- 
lished rules  of  evidence. 

Sep.   297.      The   most  general   division   of   evidence  is  into 
parol  and  irritlen.     Parol  evidence  includes  all  which  is  ^ 
un written   or  oral;   and  thus  the  testimony  of  wit-  ^^^,',1" ^Jjj 
nesscs  is  embraced  in  this  term. 


•  StM-kia  OB  ETideoM,  toI.  I,  449. 


184  JUDGE  advocate's  vadk  mkcum. 

Written  evidence  includes,  as  the  phrase  imports,  all  records, 
letters,  orders,  documents,  and  printed  matter. 

In  one  or  the  other  of  these  forms  must  all  evidence  be  sub- 
mitted to  a  court  martial.  And  since  personal  knowledge  can 
rarely  be  referred  to.  as  warranting  a  conclusion  upon  any  past 
transaction,  evcji  in  the  breast  of  a  single  judge,  the  decision 
of  the  court  must  be  based  upon  information  as  to  facts  and 
circumstances  communicated  by  others,  or  derived  from  writ- 
ten documents.  By  facts  and  circumstances  are  meant  all 
things  and  relations,  whether  natural  or  artificial,  which  really 
exist,  whether  their  existence  be  perceptible  by  tlie  senses  or 
otherwise.* 

Sec.  298.  Upon  this  subject  Mr.  Starkie  remarks:  The 
great   and   general   rule   seems   to  be   this,  that   all 

General  rule  .  ,   .     i  i  i 

an  to  wii:it  is  facts  and  circumstances  upon  wlucii  any  reasonable 

•dniiiiKible. 

presumption  or  inference  can  be  founded  as  to  the 
truth  or  falsity  of  the  disputed  fact  or  issue  are  admissible  in 
evidence;  it  being  assumed  that  they  can  be  substantiated  by 
legal  and  competent  means.  Hut  tliis  rule,  be  adds,  is  subject 
to  some  exceptions  founded  on  considerations  of  policy.  The 
rule  itself  depends  chiefly  on  two  considerations : 

1st.  That  whci-e  direct  evidence  can  be  obtained,  it  is  essen- 
tial to  the  purposes  of  justice  that  such  evidence  should  be 
open  to  contradiction  and  confirmation  from  collateral  circum- 
stances ;  and 

2d.  The  frequent  necessity  of  depending  wholly  upon  pre- 
sumptions, and  proofs  from  collateral  circumstancos.f 

The  liicts  and  circumstances  then,  bearing  upon  any  trans- 
action having  reference  to  the  issue  to  be  tried,  are  to  be  com- 
municated to  the  mind  of  the  court — and  this  is  to  be  done,  if 
practicable,  by  means  of  direct  and  positive  testimony,  which 
leads  us  to  the  second  branch  of  our  inquiries  on  this  subject. 

•1  Starkie,  15.  -fl  Starkie,  17. 


OF    EVIDENCE.  185 

Sec.  290.  II.  Direct  and  positive  evidence. — Evidence  is  said 
to  be  direct  and  positive,  when  the  facts  in  dispute 

111  11  /I      1      •         Dir(>ct   and 

are  communicated  03''  those  who,  by  means  of  their    positive 

evidence. 

senses,  have  actual  knowledj^e  of  what  they  testify. 
It  is  thus  distinguislied  fi'om  that  which  is  presmnpfive,  or 
which  is  presumed  or  inferred  from  certain  facts  and  circum- 
stances already  known  and  admitted.  "  In  strictness,"  says 
Mr.  Starkie,*  "all  evidence  is  presumptive,  as  a  jury  seldom 
have  actual  knowledge  of  a  fiict  by  means  of  their  own  senses, 
but  infer  its  existence  from  their  reliance  on  the  information 
and  veracity  of  others,  and  must  therefore  always  act  upon 
presumptions  more  or  less  forcible;  but  in  common  accepta- 
tion, direct  and  positive  evidence  is  communicated  by  one  who 
has  had  actual  knowledge  of  the  fact;  and  presumptive  evi- 
dence is  any  which  is  not  direct  and  positive." 

Sec.  300.    But  direct  evidence  may  be  either  written  or  oral. 
Let  us  then  inquire  how  it  may  be  obtained,  and  the  „    ^     _, 
means  by  which  it  is  communicated.  """  "^  "'■*'• 

l.The  first,  and  most  obvious  way  of  communicating  evi- 
dence, is  by  oral  testimony,  or  the  mouth  of  witnesses.  And 
here  a  rule  of  great  importance  must  be  noticed,  viz  :  that 
which  excludes  all  hearsay  testimony.     Hearsay  is  not  „ 

"'•'•'  Hearsay  n<Jt 

evidence,  as  a  general  rule.  B3'  the  term  hearsay,  is  *^"*®'"="- 
to  be  understood  evidence  which  does  not  derive  its  value 
solely  from  the  credit  of  the  witness  himself,  but  rests  in  part 
on  the  credit  and  veracity  of  a  third  party.  Such  evidence  is 
inadmissible  to  establish  any  fact  susceptible  of  proof  by  wit- 
nesses speaking  of  their  own  knowledge.  Its  incompetency  to 
satisfy  the  mind,  as  well  as  the  frauds  which  may  be  practised 
iin<Ier  its  cover,  combine  to  support  the  rule  which  excludes  it 
from  judicial  tribunal9."f  Hearsay  evidence  is  more»A-er  de- 
livered, without  the  required  sanction  of  an  oath  in  the  pres- 


•  VoL  I,  19.  t  Ch.  J.  Minbtll,  7  Craach,  299,  vt  M(|. 


186  JUDGE  advocate's  vade  mecum. 

ence  of  the  accusec],  and  passinj^  as  it  usually  does  through 
several  channels  of  communication,  is  liable  to  much  abuse  and 
misunderstandinij. 

Sec.  301.     The  rule  which  excludes  it,  however,  has  some 
qualifications.     Thus,  declarations   in  extremis,  or  of 

Except  lonn  . 

to  rule  ax  to  a  dying  person,  may  be  received  us  evidence  in  cases 

hearsay. 

of  homicide.  But  they  must  have  been  made  under 
a  sense  of  impending  dissolution,  which  must  appear  to  the 
^_.    .  ,     satisfaction  of  the  court.*     And  it  is  the  privilege  of 

Dylnp  doclft-  *  *=" 

rations.  ^j^^^  party  against  whom  such  declarations  are  ad- 
duced to  enter  into  the  circumstances  of  the  deceased  in  his 
last  moments,  and  thus  to  show  that  they  were  not  of  such  a 
character  as  to  lead  to  the  conclusion  that  he  was  properly  im- 
pressed with  a  religious  sense  of  his  approaching  dissolution. 
Much  more  would  this  bo  the  case  if  the  declarations  were 
accompanied  with  expressions  of  malice  or  ill-will  to  the  ac- 
cused, as  the  very  basis  on  which  their  admission  depends  is 
the  regard  for  truth,  and  the  absence  of  all  feelings  of  malevo- 
lence or  uncluiritableness,  which  the  law  infers  on  such  occa- 
sions, not,  however,  to  the  exclusion  of  evidence  to  the  con- 
trary. 

Sec.  302.  Tlie  party  whoso  declarations  in  extremis  would 
be  received  by  a  court,  must,  it  sliould  be  observed,  be  one 
whose  evidence,  were  he  alive,  would  bo  admitted.  Hence,  the 
dying  declarations  of  a  convict  would  not,  while  those  of  a 
mere  accomplice  would  be,  admissible  in  evidence. 

Nothing,  however,  can  be  evidence  in  a  declaration  In  articulo 
mortis  that  would  not  be  so  if  the  party  were  sworn.f  The 
whole  statement  must  bo  taken,  or  none,  and  the  mere  opinion 
of  tiie  party  should  bo  rejected. |  If  possible,  the  precise  words 
should  be  recited. 

Sec.  303.     Where  a  witness  has  been  examined  on  a  former 

*  Wharton's  C.  L.,  308.  f  Wharton's  C.  L.,  311.  %  Ibid,  312. 


OF    EVIDENCE.  187 


trial,  and  has  since  died,  what  he  said  at  the  first  trial       DeoeMcd 
may  be  proved  at  the  second.     And  so,  if  the  witness 
is  alive,  and  lias  been  kept  away  by  the  fraud  or  contrivance  of 
the  accused,  his  former  evidence  may  be  used  on  the  trial. 

Sec.  304.     Where  a  party  is  tried  for  mutiny,  riots,  etc.,  what 
was  said  by  any  of  the  rioters  or  mutineers  may  be 

Declarations 

proved  as  going  to  show  the  design  and  intention  of  of  rioters, 
the  party. 

Sec.  305.     We  return  now  to  the  subject  of  oral  testimony, 
or  that  derived  from  witnesses  : 

We  have  in  a  former  place  spoken  of  the  manner  in  which 
the  attendance  of  Avitnesses,  military  persons,  is  procured  at  a 
court  martial.  There  is  no  way  of  compelling  the  attendance 
of  one  not  belonging  to  the  service,  though  we  have  witnesses' 
shown  how  his  deposition  may  be  taken.  The  army  *'=f^"''**- 
regulations  also  provide  for  the  paj^ment  of  the  expenses  of 
any  witness  not  belonging  to  the  army,  by  a  per  diem  allow- 
ance, as  is  done  in  the  civil  courts. 

Sec.  306.     The  testimony  of  witnesses  is  delivered  viva  voce 
before  the  court  under  certain  rules  and  restrictions, 

Viva  VOC8. 

the  principal  of   which  it  will  here  be  necessary  to 
notice.     All   testimony   is  received  under  the  sanction  of  an 
oath,  and  hence  all  witnesses  must  be  sworn  in  the  manner 
required  by  the  Articles  of  war,  as  already  pointed  out. 

Sec.  307.  In  general  any  one  may  be  examined  as  a  witness 
who  has  understanding  and  memory,  and  who  is  ca-  vmomaybe 
pable  of  being  l»ound  by  an  oath.  But  there  are 
circumstances  which  disqualify'  a  person  as  a  witness  alto- 
gether, and  these  are:  Ist.  The  \canf  of  religious  belief,  j»j^„»,iflc. 
as  in  the  case  of  young  children,  lunatics,  idiots  and 
atheists,*  and  some  others. 

Sec.  308.     A  lunatic  may  be  admitted  to  testify  in  his  lucid 

•1  SUTkie.  .3»2. 


18d  JUDGE  advocate's  vade  mecum. 

Lunatic* and  intervals;  but   as  an  idiot  is  ahva3's  non  compos,  bis 

*"■  evidence,  of  course,  cannot  bo  received.    Intoxication 

is  obviously,  for  the  time  boin«j,  a  i^round  of  disqualification. 
The  ground  on  which  children,  as  such,  are  rejected,  is  their 
general  inability  to  appreciate  the  obligations  of  an  oath. 
There  can,  therefore,  bo  no  settled  age  at  which  they  can 
testify;  but  their  conipetcnc}^  must  depend  u])on  the  degree  of 
knowledge  and  understanding  which,  upon  examination  by 
the  court,  they  are  proved  to  possess.* 

Even  a  person  born  deal"  and  dumb,  if  he  has  understanding, 
may  be  examined  by  a  sworn  interpreter,  who  is  able  to  convey 
his  replies  by  means  of  signs  and  motions.  The  obligation  and 
nature  of  the  oath  should  be  explained  to  the  witness  by  the 
interjjreter,  so  as  to  ascertain  if  he  understands  and  accepts 
it.f  Or  should  the  witness  be  able  to  read  and  write,  as  in 
some  instances,  the  whole  process  ma}'  be  conducted  by  the 
Judge  Advocate  by  such  means. 

Sec.  309.  Incompetency  may  also  arise  in  the  witness  from 
wantofrtii-  ^'^^"^  of  Teligious  belief,  xohere  there  is  no  defect  of  under- 
giouB  lie.  gf^j^dfj^g  Persons,  therefore,  who  avow  a  disbelief  in 
God,  and  a  future  state  of  rewards  and  punishments,  cannot  bo 
competent  witnesses,  inasnuuh  as  they  repudiate  the  only  obli- 
gation which  the  law  can  in)])(>sc  on  the  conscience  of  men. 

Sec.  310.  The  proper  time  for  showing  the  religious  opin- 
ions of  a  witness  is  before  he  is  sworn.     The  ordinary 

How    and  .         n  •  i  •  ■•     •  •  •  i 

when  to  modc  01  proving  hiH  religious  views  is  to  produce  evi- 
donee  of  iiis  declarations  to  others.  The  iceii/ht  of 
opinion  now  is  that  the  witness  himself  cannot  he  questioned  or 
examined  on  this  subject.^  Sometimes  the  witness  has  been 
questioned  on  the  voir  dire  as  to  his  religious  belief;  but,  said 
W.  Serjeant  Talfourd,§  "it  may  be  doubted  whether  a  witness 


*  2  Rtarkie,  392.  %  Wharton's  C.  L.,  309. 

t  Wharton  C.  L.,  352.  g  As  quoted  in  Wharton,  370. 


OF.  EVIDENCE.  189 

would  not  be  justified  in  insisting,  when  so  questioned,  on  the 
simple  answer  that  he  considers  the  oath  administered  in  the 
usual  form  binding  on  his  own  conscience,  and  in  declining  to 
answer  further,  for  a  confession,  thus  forced  from  him,  of  a 
disbelief  in  a  state  of  retribution,  Avould  certainly  be  esteemed 
as  disgraceful  in  a  court  of  justice,  and'there  seems  no  reason 
wh}-  a  person  should  thus  be  taxed,  perhaps  to  his  own  infinite 
prejudice,  merely  because  he  appears  to  perform  a  public  duty 
in  obedience  to  a  subpoena.  At  all  events,  it  is  quite  clear  that 
a  witness  may  properly  refuse  to  answer  any  questions  which 
go  beyond  an  inquir}-  into  his  belief  in  a  superior  Being  to 
whom  man  is  answerable,  and  that  it  is  the  duty  of  counsel  to 
refuse,  however  urged,  to  put  such  questions,  which  are  alto- 
gether impertinent  and  vexatious." 

Sec.  311.  The  second  cause  of  disqualification  in  a  witness 
which  may  bo  named  is  infamy  of  character.  Persons  ^^^^^  . 
convicted  of  crime  are  called  infamous.  The  crime  or  '^'""^*«'"- 
oflFence  must  be  one  which  is  inconsistent  with  the  principles  of 
common  honesty.*  The  usual  enumeration  of  these  disqualify- 
ing crimes  is,  treason,  felony,  and  all  offences  of  fraud  em- 
braced in  the  general  idea  of  the  crimen  falsi,  such  as  perjury, 
piracy,  forgery,  swindling,  etc.f  Says  Mr.  Wharton  :|  *'  The 
extent  and  meaning  of  the  term  '  crimen  falsi,'  is  nowhere  laid 
down  with  precision ;  but  from  an  examination  of  the  different 
decisions  it  may  be  deduced  that  the  crimen  falsi  of  the  com- 
mon law  not  ^*n\y  involves  the  charge  of  falsehood,  but  also  is 
one  which  may  injuriously  affect  the  administration  of  justice 
by  the  introduction  of  falsehood  and  fraud." 

Sec.  312.  A  conviction  without  judgment  docs  not  produce 
disability.     And  the  judgment  must  be  in  a  court  of 

.       J.  .  XTTl  1  r>  •  •  1  CflTlTiCtioll 

competent  jurisdiction.     Whether  a  foreign  judgment     mn<i  judg- 
ment, 
has  the  effect  of  di-nqualifying  a  witness  is  j'ct  doubt- 

•2  8l»rtii«,  714.  flbid,  715.  J  Crim.  Law,  354. 


190  JUDOE  advocate's  vade  meodm. 

ful.  The  affirmative  of  the  proposition  lias  been  maintained 
b}'^  Judge  Story*  ami  ^fr.  Grreonleaf.f  This,  indeed,  would 
seem  to  be  the  bettor  <)i)inion,  though  the  contrary  has  been 
held  by  very  able  jurists.  It  may  be  observed,  however,  in 
support  of  the  affirmative  position,  that  formerly  the  punish- 
ment pronounced  for  tke  crime  was  the  test  of  disqualification, 
and  tliis  would,  of  course,  vary  in  different  countries.  But  in 
modern  times  the  offence  or  crime  itself  is  alone  regarded. 
Moral  turpitude,  therefore,  is  now  the  essence  of  the  objection, 
and  it  is  difficult  to  see,  on  this  ground,  any  just  reason  for  the 
distinction  between  foreign  and  other  judgments  which  has 
been  attempted. 

"  Desertion,  though  a  higli  crime,  is  not  deemed  such  an 
offence  as  renders  the  one  who  has  committed  it  incompetent. 
It  may,  however,  be  considered  as  affecting  the  credibility  of 
the  witness  upon  proof  of  conviction. "| 

A  witness  incompetent  for  infamy,  it  is  said  may  have  his 
affidavit  read,  to  defend  himself  against  such  compluint,  but  for 
no  other  puri)ose.§ 

Sec.  313.  But  incompetency  from  infamy  may  be  removed, 
and  competency  restored  in  three  ways:  1st,  by  par- 

Incompc-  11,1  /111 

tency.  how    dou  ;  zd,  by  prooi  that  the  party  lias  undergone  the 

renuivcd. 

penalty  of  the  law,  and  suffered  the  punishment  de- 
nounced against  his  crime ;  3d,  by  proof  of  the  reversal  of  the 
judgment.ll 

1.  A  pardon  granted  after  the  sentence   of  the  court   has 
been  complied  with,  e.  g.,   the  fine  paid,  or  impris- 
onment expired,   purges  the  disability,  and  restores 
competency.     It  -must,  however,  correctly  recite    the   offence, 
and  a  misrecital   will  render  it  inoperative.     But  where  disa- 
bility is  attached  to  the  conviction  of  a  crime  by  express  pro- 

♦  Story's  Con.  of  Laws,  91,  93,  etc. 

t  1  Grecnleaf  Ev.,  Sect.  376,  and  sec  2  Starkie,  716,  note  3. 

I  Do  liart,  393.  g  2  Starkie,  722.  |1  Ibid,  716. 


OF   EVIDENCE.  191 

visions  of  the  law,  the  pardon,  it  is  thought,  cannot  restore 
the  competency  of  the  offender,  the  words  of  the  act,  in 
such  cases,  being  held  to  control  the  prerogative  of  the  gov- 
ernment.* 

If  conditions  arc  annexed  to  the  pardon,  they  must  of  course 
be  complied  with,  or  it  will  be  inoperative.  A  promise  in  the 
pardon  excepting  legal  disabilities  is  repugnant,  and  therefore 
void. 

2.  When  the  party  has  suffered  the  punishment  awarded,  he  is 
in  general  restored  to  competency  by  this  fact.     But 
perjury  is  said  to  bfe  an  exception  to  this  rule.  suffered. 

3.  Reversal  of  the  judgment. — This  will  restore  the  compe- 
tency of  the  witness  by  removing  the  cause  of  disa-    jg^g^^jj,  ^, 
bility.     Such  reversal  must  be  proved  by  the  produc-    J"''8nient. 
tion  of  the  record. f 

Sec.  314.  The  third  ground  of  incompetency  to  be  noticed 
is  that  arising  from  interest. 

-r»    .  .  1        •  /^  11  Interest. 

Private  interests  can  rarely  interfere  to  the  exclu- 
sion of  witnesses  in  ordinary  criminal  prosecutions,  much  less 
are  they  likely  to  do  so  in  military  trials.    But  even  here  there 
are  cases  where  parties  are  properly  excluded  on  the  ground  of 
interest. 

Mere  bias  is  not  sufficient  to  disqualify;  neither  is  interest  in 
a  similar  suit  or  question.  The  general  rule  is  that  the  interest 
to  disqualify  must  be  some  legal,  certain,  and  immediate  inter- 
est, however  minute,  in  the  result  of  the  cause,  or  in  the  record 
as  an  instrument  of  evidence,  acquired  without  fraud.]; 

P^xpectation  of  benefit  does  not  of  itself  disqualify.  Thus, 
an  informer  is  a  competent  witness,  though  he  received  part 
of  the  penalty ;  and  even  where  one  is  entitled  to  a  reward,  on 
the  conviction  of  the  defendant,  he  is  yet  competent  to  testify. 
These  may  be  regarded  ae  exceptions  to  the  rule,  but  they  are 

•  Wh»rton'i  C.  L.,  357.  f  J  SUrkie  Ev,,  7J2.  J  2  SUrkie,  744. 


192  JUDGE  advocate's  vade  mecum. 

established  on  grounds  of  necessity  nnd  policy.*  So,  on  the 
same  grounds,  the  prosecutor,  and  a  |)arty  whose  signature  has 
been  forged  may  both  be  examined,  unless  in  cases  where  they, 
are  so  directly  and  positively  interested  in  the  event  as  to 
over-balance  the  policy  of  the  rule  admitting  them,  of  which 
the  court  are  to  judge. 

Sec.  315.     An  accomplice  is  a  competent  witness,  though  his 
expectation  of  pardon   depend  on   the  conviction  of 

Accomplice.  i        rr-  i       •      i-  i    i  i 

the  accused.  It  separately  indicted,  he  may  be  exam- 
ined ill  favor  of  the  defendant."!"  Where  several  are  joined  in 
cue  indictment,  the  court  may  order  the  acquittal  of  one  or 
more  against  whom  no  evidence,  or  insufficient  evidence  has 
been  adduced,  and  they  may  be  examined  as  witnesses  against 
the  remainder.  But  before  an}-  sueli  exaniinatioii  could  be  had 
in  a  court  martial,  the  proceedings  in  the  cases  of  such  as  are 
acquitted  would  require  approval,  and  hence  an  adjournment 
of  the  court  would  be  requisite,  uniil  such  time  as  would  be 
necessary  for  the  confirmation.  If  the  testimony  of  one  in- 
volved ill  the  same  charge  is  requisite  for  the  defence  of  the 
prisoner,  he  ought  as  soon  as  practicable  to  apply  for  a  sepa- 
rate trial,  to  the  authority  ordering  the  court  martial;  and  if 
not  attended  to,  his  application  may  be  renewed  to  the  court. | 
Sec.  81G.  Although  a  conviction  on  the  testimony  of  an  ac- 
complice or  particeps  criminis  is  legal,  yet  it  is  usual, 
idence  of  an  and  pcrliaps  bcttcr,  generally,  to  acquit  the  accused  in 

accomplice . 

cases  where  such  testimony  is  uncorroborated.  This 
is,  however,  a  question  to  be  detennined  by  circumstances. 
The  witness  being  competent,  the  court  are  to  decide  as  to 
his  credibility.  But  his  testimony  is  to  be  regarded  with 
much  caution,  and  juries  in  criminal  prosecutions  have  been 
advised  by  the  judge  that  it  was  "dangerous"  to  convict  on 
the  unsupported  evidence  of  an  accomplice  in  guilt.§     Con- 

*  Wharton'8  C.  L.,  1564.  t  ^'^  I^a""''  3^^- 

t  Ibid  367,  368.  §  Wharton,  C.  L.,  367. 


OF   EVIDENCE.  103 

firmation,  however,  is  not  required,  and  cannot  be  expected  in 
every  particular  of  the  testimony. 

Sec.  317.  A  ])arty  wlio  is  bail  for  the  accused,  is  incapaci- 
tated; but  his  ca])acity  may  be  restored  by  substitut- 

■  Hail. 

ing  new  bail.     So,  also,  a  pecuniary-  interest  maj'  be 

°  >  »         1  ^  J  Release. 

removed  by  a  release  to  the  witness. 

Sec.  318.  Although  a  particcps  criminis,  who  has  testified 
fully  and  imi)artially,  cannot  demand  his  own  pardon, 

*  1  "^  '  '  '     Arr..nii.lice 

yet  the  practice  is  to  grant  it.     It  has,  indeed,  been   {.".'^'.^''^fg. 
decided  that  if  an  accomplice  be  admitted  to  testify,  ^  "'^'^  ' 
and  has  done  so  in  good  faith,  the  government  is   bound   in 
honor  to  discharge   him.*  > 

Stc.  319.  Husband  and  Wife. — Tlie  relation  of  husband. and 
wife  is  another  cause  of  incompetency.  The  disa-  Gn.imd  of 
bility  in  these  parties  to  testify  either  for  or  against  «*''"•'""• 
each  other  results  from  the  joint  consideration  of  their  identity 
of  interests,  and  the  polic}'  of  the  law  in  its  desire  to  prevent 
domestic  dissension,  and  to  preserve  inviolate  the  confidence  of 
80  sacred  a  relation.  Where  husband  and  wife  are  admissible 
against,  thcj'^  are  also  admissible  for  each  other.  But  the  gen- 
eral rule  is  that  the}-  cannot  appear  as  witnesses  either  for  or 
against  each  other.  And  this  rule  is  so  rigid  that  it  is  incom- 
})etent  to  examine  a  party  divorced  a  vinculo  as  to  anything 
that  transpired  during  the  covtrture.     There  are,  how- 

,  ,  1      ,    •  Kxccjition*. 

ever,  some  lew  exceptions  to  the  rule,  grounded  in 
necessity  :  thus,  the  dying  declarations  of  a  wile  murdered  by 
the  husband  would  be  admissible,  and  so  ma}'  a  wife  be  ex- 
amined on  an  indictment  of  her  husband,  for  actual  violence 
to  her  person,  or  in  cases  affecting  her  personal  liberty  and 
security. 

Stc.  Sli).  The  law  includes  in  this  disabilit}'  onl}-  such  as 
are  legally  bound  as  husband  ami  wile;  therefore,  a  tri,  inrio* 
marriage  by  force,  or  a  second  marriage  during  the       **■ 

•  Whurlon,  C.  L.,  368. 
13 


194  JUDGE  advocate's  vape  mecum. 

life  of  either  party  to  the  first,  would  not  disqualif}'.  To  give 
it  such  an  effect  the  marriage  must  have  been  legal. 

But  it  is  unnecessary  to  enlarge  on  this  subject,  as  questions 
of  this  chanictcr  are  not  likely  to  arise  before  military  tri- 
bunals. 

Sec.  321.  Counsel  and  Client. — This  is  another  relation  from 
r.mniei  and  ^^'^^'*'^^  incapacity  to  testify,  or  rather  exemption  from 
'^''*"*'  any  obligation  to  do  so  results.     Hence,  eases  of  this 

sort  are  styled  cases  of  privilege.  An  attorney  being  bound  to 
keep  the  secrets  of  his  client,  cannot  be  examined  against  him. 
This  privilege,  however,  does  not  extend  to  matters  within  his 
own  knowledge  before  he  has  been  addressed  in  his  profes- 
sional character.  But  when  an  attorney  is  consulted  on  busi- 
ness professionally,  the  communications  between  himself  and 
his  client  are  wholly  confidential,  and  he  should  not  be  re- 
quired to  divulge  them.  The  rule  relates  only  to  profes- 
sional intercourse,  and  therefore  does  not  embrace  information 
derived  from  other  sources.  But  it  covers  all  information 
obtained  from  the  client,  whether  verbal,  or  from  books  and 
papers  exhibited  by  him.* 

This  immunity  docs  not  extend  to  any  agent,  steward,  or 
servant.  Neither  are  communications  made  to  clergymen  or 
medical  men  considered  privileged!  But  officers  of  the  Execu- 
tive Departments  cannot  be  compelled  to  disclose  information 
which,  in  their  judgment,  would  be  prejudicial,  if  divulged,  to 
the  public  interests.  Nor  will  the  court  compel  the  disclosure 
of  lacts,  fi'om  any  source,  when  such  disclosures  would  be 
detrimental  to  the  public  interests.]; 

Skc.  322.  Credibility  of  witnesses.  —  A  witness  may  be  com- 
credibiiity  Patent  to  testify,  and  yet  there  may  be  circumstances 
of  witoesa.  affecting  his  credit  before  the  court,  so  as  not  to  entitle 
his  statement  to  belief     When  such  is  the  case,  his  credit  may 

•  WhartoD'8  C.  L.,  381.  t  ^^^^'  362. 

X  Wharton's  C.  L.,  363.     See,  also,  1  Qreenleaf  Ev.,  sec.  260. 


OF    EVIDENCE.  195 

be  attacked  or  impeached  by  adducing  evidence  affect-       ,j^^ 
ing  bis  character  for  veracity  ; ,  but  this  examination       »» "^  « 
must  be  confined  to  his  general  reputation  for  truth  and  veracity. 
Particular  parts  of  a  man's  character  or  conduct  cannot  be 
inquired  into.* 

The  questions  generally  allowed  to  be  put  on  such  occasions 
arc  :  '•  Do  5'ou  know  the  general  character  of  the  witness?  and 
if  you  do,  what  is  it  for  truth  and  veracity?"  "Would  you 
believe  him  on  his  oath  ?"  But  it  is  inadmissible  to  attempt  to 
show  the  estimation  in  which  the  witness  is  held  in  his  partic- 
ular neighborhood,  or  to  prove  that  he  is  a  j)erPon  of  infamous 
character. 

On  the  cross-examination  of  the  attacking  witness  the  in- 
quiry must  be  confined  to  his  opportunity  for  know-  f.roM-«xam 
ing  the  character  of  the  witness  impeached,  the  '""*""'• 
sources  of  such  knowledge,  and  the  length  of  time,  and  how 
generall}'  such  unfavorable  reports  against  him  have  pre- 
vailed.f 

Sec.  323.     But  the  credit  of  a  witness  ma}'  be  impeached,  in 
the  second   place,  by  contradicting  him,  that  is,  by 
showing  that  out  of  court  he  has   made  statements  may  he 

contradicted. 

contrary  to  his  testimony  at  the  trial.  This  contra- 
diction of  a  witness,  however,  must  be  limited  to  such  matters 
as  are  relevant  to  the  issue;  but  if  he  voluntarily,  that  is,  with- 
out being  questioned,  swears  falsely  to  irrelevant  subjocts,  it  is 
held  he  may  be  impeached  as  to  these  also.  The  witness  can 
in  no  case  be  admitted,  when  impeached,  to  corroborate  his 
statements  made  at  the  trial  with  proofs  of  declarations  made 
by  him  elsewhere. t 

Sec.  324.  Before  concluding  our  remarks  on  the  subject  of 
oral  testimony,  it  will  be  proper  briefly  to  refer  to  some  of  the 
rules  which  regulate  the  examination  of  witnesses. 


•  Wh*rtoB'i  C.  L.,  377.  f  Ibid,  377.  J  Ibid,  178,  a7». 


196  JUDGE  advocate's  vade  mecum. 

Examination  of  witnesses. — In  gencial,  an  objection  to  tlio 
Objections  cunipetcncy  of  witiies.se.s  ought  to  be  taken  before 
tt'ncy"when   the  cxHuii Mution-in-chief,  otherwise  an   unfair  advau- 

t.(  make,  i  ,    i  ■        •         i    <  <  i  .         •  . ,.  . 

tage  would  be  obtained  by  tlie  objecting  party,  it  he 
Were  permitted  to  Iiear  the  testimony  of  a  witness,  and  then 
avoid  it  by  raising  objections  wliere  it  proved  to  be  adverse. 
But  where  tlie  incompetency  arises  from  intenat,  the  objection 
may  be  taken  after  the  examination-in-chief,  if  it  appear,  in  the 
course  of  the  trial,  tliat  the  witness  is  interested;*  but  not  if 
the  objection  was  known  bel'ore. 

Sec.  o2o.  Leading  questions,  by  which  are  to  be  understood 
questions  which  suggest  to  the  witness  tlic  answers  to  be 
made,  are  not  in  general  to  be  asked.  But  where  the  matter 
about  which  the  witness  is  examined  is  merely  introductory  of 
that  which  is  material,  it  is  often  desirable  to  lead  his  mind 
directly"  to  the  subject ;  and  where  the  witness  is  examined  as 
to  material  facts,  it  is  in  general  necessary  to  some  extent,  to 
lead  his  mind  to  the  subject  of  inquiry.  (Questions  to  which 
the  answer  yes  or  no  would  be  conclusive  are  inadmissible; 
and  so,  also,  are  questions  that  suggest  the  desired  answer. f 

The  court  must  decide  as  to  the  projiricty  of  questions  which 
may  be  objected  to;  and  will  allow  leading  questions  on  the 
examination-in-chiel',  either  where  from  the  nature  of  the  case 
the  witness  cannot  be  directed  to  the  sulject  of  inquir}'  ex- 
cept by  a  ])articular  specification  oj'  it,  or  where  any  attempt 
is  manifest  in  the  witness  to  conceal  the  truth.];  80,  if  the  wit- 
ness shows  that  he  is  decidedly  advei'se  in  his  feelings  to  the 
party  calling  him,  the  court  may  allow  leading  questions  to 
be  put  to  him.  l>ut  in  general  the  I'ule  which  excludes  the  use 
of  such  questions  should  be  adhered  to. 

'J'lie  witness   should  state  only'  what  he  knows  of  his  own 

♦  2  Starkie,  121. '  fl  Starkic,  124.  J  Ibid,  126. 


OF    EVI1>F,NCR. 


10- 


perHonal  kiiowlodgc  of  the  facts  he  relates;  his  per- 

Perminal 

Buasion  or  belief  are  not  proper  subjects  of  inquiry,     knowifiKe 
unless  such  belief  is  based  on  facts  within  bis  actual 
knowledi^e,  or  relates,  as  in  examinations  of  professional  men, 
to  matters  of  skill  and  judgment,  where  from  the  nature  of 
things  the  evidence  cannot  extend  beyond  opinion  and  belief* 

Skc.    326.      Croxs-exmni nation.  —  Upon    a    cross-examination 
leading  questions  may  be  put,  but  they  must  not  as-  cr„w«am- 
snwe  facts  which  have  not  been  proved,  or  anything 
else  contrary'  to  the  facts  which  are  proved. 

The  object  of  the  cross-examination  is  to  elicit  the  truth  as 
to  the  evidence  of  the  witness;  hence  irrelevant  questions  are 
not  allowed  ;  nor  can  a  cross-examination  be  made  as  to  an}- 
distinct  collateral  fact,  for  the  purpose  of  impeaching  the  wit- 
ness bj'  contradicting  him.f  Though  the  witness  has  not  been 
examined  in  chief,  j'et  if  he  has  been  sworn,  he  is  subject  to  be 
cross-examined  b}'  the  opposite  party.;}; 

Sec.  327.  The  mode  of  examination  is  generally  regulated 
by  the  court,  according  to  the  capacity  and  disposi- 

Court  tfireg- 

tion  of  the  witness,  and  an  adverse  witness  is  some-  niate»xami- 

natiuii. 

times  allowed  to  be  cross-examined  by  the  party  who 

calls  him,  where  circumstances  render  it  necessarj-  and  proper. 

Sec.  32S.  After  the  cross-examination,  a  re-eravxination  is 
allowed,  to  explain  any  tacts  or  circumstances  devel-  j, 
oped  on  the  cross-examination.  The  re-examination 
must  therefore  be  confined  to  the  subject  matter  of  the  cross- 
examination  ;§  and  being  wholl}-  an  explanatxiry  process,  no 
now  matter  can  properly  be  introduced  thereby. 

Sec.  329.  A  witness  cannot  refuse  to  answer  questions  which 
subiect   him    merely   to   civil    liabilities   or  charges;  _, 

•'  •'  WhiiJ     qowi- 

but  it  is  clear  that  he  is  not  bound  to  answer  any  J,','^"'*"?^ 
question  if  his  answer  will  expose  hiin  to  an}'  penal 

•  1  Ptarkip.  127.  t  IWd,  134.  1 1^«<1.  '31.  ?  De  Hart,  109. 


<" -PI  arai  na- 
tion. 


198  JUDOE  advocate's  vape  hecum. 

liability  or  crimiiiul  punishment,  for  no  man  is  required  to 
criminate  himself;*  neither  is  he  hound  to  answer  any  question 
which  would  render  him  infamous  or  dist^raee  him,f  or  which 
would  impeach  his  conduct  as  a  public  officer.];  The  witness  is 
himself  to  be  the  judj^e  whether  he  can  safely  reply  to  ques- 
tions propounded  to  him,  but  must  always  state  under  oath 
that  his  answer  would  criminate  or  accuse  him,  before  ho  can 
be  exempted  by  the  court.§  But  if  a  witness  replies  to  a  ques- 
tion the  answer  to  which  would  criminate  him,  on  the  exami- 
nation-iii-chief,  it  seems  he  cannot  i)e  protected  on  the  cross- 
examination,  but  is  bound  to  answer  everything  relating  to  the 
transaction. II 

Sec.  330.     Whether  a  witness  is  bound  to  reply  to  questions 
mere!}'  tending  to  criminate  or  disgrace  \\'\n\   is  not 

Questions  -\r  r\  »r>l  !•••  Li 

t«iidin«to      SO  clear.     Mr.  Crreenleaf  draws  a  distinction  between 

criiuiiiat*. 

questions  which  are  material  to  the  issue,  and  such  as 
are  only  collateral  to  it;  in  the  former  case  he  considers  it 
absurd  to  exclude  the  testimony  of  the  witness  merely  because 
of  its  tendency  to  disgrace  him.  And  Mr.  Wharton^  concludes 
that  the  weight  of  authority  tends  to  the  oj)inion  that  where 
the  transaction  to  which  the  witness  is  interrogated  forms  part 
of  the  issue  to  be  tried  he  will  be  obliged  to  give  evidence, 
however  strongly  it  may  reflect  on  his  character. 

Sec.  331.     Although   the  privilege  of  declining  to  reply  to 

such  questions  is  personal  to  the  witness,  and  cannot 

personal  to    be  either  raised  (except  by  way  of  advice  from  the 

the  witnsHS. 

Judge  Advocate,  where  the  witness  is  ignorant  of  his 
rights),  or  be  argued  by  counsel,  the  question  of  exemption  is 
finally  to  bo  decided  by  the  court  after  the  declaration  of  the 
witness  that  he  cannot  safely  answer.     It  is,  says  Mr.  Whar- 


•  1  Starkie,  VM.  {  See  sec.  331. 

t  Ibid,  137,  et  seq.  \\  Wharton's  C.  L.,  375. 

X  I  Cranch,  144.  f  Grim.  Law,  377. 


OF    EVIDENCE.  199 

ton,*  the  province  of  the  court  to  determine  whether  a  direct 
answer  to  the  question  may  criminate;  and  the  witness  is  never 
compelled  to  answer  where  there  is  reasonable  ground  to  sus- 
tain his  objection. 

It  is  hardly  necessary  to  add  that  the  examination  of  pro- 
fessional men,  as  such,  should  be  confined  to  subjects     „  ,    . 
within  the  scope  of  their  particular  profession.  *'  '"*'°" 

Sec.  332.  2.  Depositions. — We  have  said  that  evidence  of  a 
direct   character   was   to    be    communicated    in    two 

1.  ..  mi/^  /^i  Depoiition*. 

ways:  orally,  and  in  writing.  The  first  of  these  has 
now  been  considered.  Of  the  second,  or  written,  direct  evi- 
dence, little  need  be  observed,  as  it  is  communicated  in  the 
depositions  or  aflidavits  of  witnesses  themselves,  with  regard 
to  which  the  same  rules  are  to  be  applied  as  where  the  exami- 
nation is  viva  voce  before  the  court. 

The  general  rule  is  to  require  the  production  of  the  party  to 
be  examined  in  open  court,  his  evidence  thus  delivered  being 
regarded  as  the  best  evidence;  which,  as  will  hereafter  be 
shown,  must  always  be  produced  when  possible.  Depositions 
therefore  are  obviously  in  derogation  of  this  rule,  and  hence 
can  never  be  admitted,  except  under  the  sanction  of  proper  au- 
thority. This  authority  in  civil  cases  is  usuall}'  a  commission 
from  the  court.  But  courts  martial  are  authorized  by  the  74th 
Article  of  war  to  admit  the  deposition  of  witnesses  not  in  the 
line  and  staff  of  the  army  in  cases  not  capital.  The  deposi- 
tion is  directed  to  be  taken  before  a  justice  of  the  peace  ;  and 
the  prosecutor  an<l  accused  are  required  to  be  present,  or  to  be 
notified  thereof  It  thus  appears  that  in  capital  cases  no  dep- 
osition can  be  read  in  evidence  before  a  court  martial. 

Sbc.  333.  III.  Circumstantial  evidence. —  We  are  next  to 
treat  of  circamstantial  or  presumptive  evidence. 

It  will  bo  impossible  to  do  more  than  to  state  the  leading 

•  CriB.  Law,  372. 


200  JunoK  advocate's  vapk  MF.rrM. 

principles  of  iho  law  on  tliis  intorestins;  topic,  and  even  tliis 
must  be  done  in  very  i;onor:il  tonns,  as  to  enter  into  a  close 
examination  of  its  distinctive  features  would  be  foroii^n  to  the 
objects  of  this  undertakiniij ;  nor,  indeed,  is  it  desirable,  in  the 
presence  of  the  manj'  valuable  and  learned  texts  books  on  the 
subject. 

Tlio  ground  of  all  presumptions,  saj^s  Mr.  StarUie,  is  the  nec- 
essary or  usual  connection  between  facts  and  circum- 

Orounci   of  I  1  1      1  /»         1  •    1  1 

presniiii.tive  staiiccs,  tho   knowled<^e  of  which  connection  results 

evidence. 

from  experience  and  reflection.  A  presumption  is  an 
inference  as  to  the  existence  of  a  fact  not  actually  known,  aris- 
ini;  from  its  necessary  or  usual  connection  with  others  which 
are  known.* 

Circumstantial  evidence  is,  therefore,  any  which  is  not  direct 
and  ])ositivo.  It  is  allowed  to  ])rcvail,  not,  as  is  often  8upi)08ed, 
on  t^rounds  of  necessity  and  policy,  but  because  in  its  very 
nature  it  is  ca]iable  of  producing  the  highest  degree  of  moral 
certainty.  For  crime  can  rarely  be  committed  witiioiit  atVord- 
ing  vestiges  b^-  wiiicli  the  ott'ender  ma}*  be  traced  and  ascer- 
tained. Human  transsictions  arc  all  interwoven  with  each 
other  and  the  natural  world,  and  no  fact  or  circumstance  haj)- 
pens  which  does  not  owe  its  existence  to  others,  and  which 
does  not  in  its  turn  tend  to  jiroiitice  a  host  of  dependent  facts 
and  circumstances,  resting  in  jierfcct  hai-mony  with  each 
othor.f  "  Ilenco,  if  a  number  of  tlie  circumstances  which 
attended  a  disputed  fact  lie  known,  and  these  so  coincide  and 
agree  with  the  hypothesis  that  the  disputed  fact  is  true  that 
no  otlier  hypothesis  can  consist  with  those  circumstances, 
the  truth  ol"  that  hypothesis  is  necessarily  established."]; 

The  conclusions  to  be  deduced  from  circumstantial  evidence 
are  not,  therefore,  of  a  hazardous  and  unsatisfactory  ciiai-ac- 
ter,  but  are  to  be  relied  on  as  generally  just   and  accurate; 

*  1  Starkie,  23.  f  ^^^'^>  *82.  J  Ibid,  482. 


OF    EVIUKNCK.  201 

nevertheless  it  is,  says  Mr.  Starkie,  a  species  of  evidence  which 
requires  the  utmost  degree  of  caution  and  vigilance  in  its 
application. 

Sr.c.  334.  To  illustrate  the  general  bearing  of  this  evidence 
Mr.  "Wharton  introduces  the  following  observations  |n,,,„r,ance 
from  Mr.  Greenleafs  work  on  Evidence,  which  are 
clear  and  pertinent:  "After  proving  that  the  deceased  was 
feloniously  killed,  it  is  necessary'  to  show  that  the  ])risoner 
was  the  guilty  agent.  And  here,  also,  circumstances  in  tlie 
conduct  and  conversation  of  the  prisoner,  tending  to  fix  upon 
him  the  guilt  of  the  act  —  such  as  the  motives  which  may  liave 
urged  him  to  its  commission,  the  means  and  facilities  for  it 
which  he  possessed,  his  conduct  in  previously  seeking  for  an 
opportunity,  or  in  subsequently  using  means  to  avert  sus- 
picion from  himself,  to  stifle  inquiry,  or  to  remove  material 
evidence — are  admissable  in  evidence.  Other  circumstances, 
such  as  possession  of  poison,  or  a  weapon  wherewith  the  deed 
may  have  been  done,  marks  of  blood,  the  state  of  the  pris- 
oner's dress,  indications  of  violence,  and  the  like,  are  equally 
competent  evidence.  But  it  is  to  be  recollected  that  a  ])erson 
of  woiik  mind  or  nerves,  under  the  terrors  of  a  criminal  accu- 
sation, or  of  his  situation  as  calculated  to  awaken  suspicion 
against  him;  and  ignorant  of  the  nature  of  the  evidence  and 
the  cause  of  criminal  procedure,  and  unconscious  of  the  secu- 
rity which  truth  and  sincerity  afford,  will  often  resort  to 
artifice  and  falsehood,  and  even  to  the  fabrication  of  testimony, 
in  order  to  defend  and  exonerate  himself  [2  Hale  P.  C,  290; 
3  Inst.,  202;  2d  Starkie  Ev.,  521]  In  order,  therefore,  to  con- 
vict the  prisoner  upon  the  evidence  of  circumstances,  it  is  held 
necessary  not  only  that  the  circumstances  all  concur,  to  show 
that  he  committed  the  crime,  but  that  they  all  be  inconsistent 
with  any  other  rational  conclusion. 

"But  in  order  to  prove  that    the  prisoner  was  the  guilty 
agent,  it  is  not  necessary  to  show  that  the  fatal  deed  was  done 


202  JUDGE  advocate's  vade  mbcum. 

immediately  by  his  own  hand.  We  have  already  seen  that  if 
he  were  actually  present,  aiding  and  abetting  the  deed,  or  were 
constructively  present,  by  performing  his  part  in  an  unlawful 
and  felonious  enterprise,  expected  to  result  in  homicide,  such  as 
by  keepitii^  watch  at  a  distance  to  prevent  surprise,  or  the  like, 
and  a  murder  is  committed  by  some  other  of  the  party  in  pur- 
suance of  the  original  design;  or  if  he  combined  with  others  to 
commit  an  unlawful  act,  with  the  resolution  to  overcome  all 
opposition  by  force,  and  it  results  in  murder;  or  if  he  employ 
another  person,  unconscious  of  guilt,  such  as  an  idiot,  lunatic, 
or  child  of  tender  age,  as  the  instrument  of  his  crime,  he  is 
guilty  as  the  principal  and  immediate  oftender,  and  the  charge 
against  him,  as  such,  will  be  supported  by  evidence  of  these 
facts."     See  3  Greenhaf  Ev.,  sec.  137, 138. 

Sec.  335.  When  the  fact  of  guilt  is  not  proved  by  positive 
and  satisfactor}'  testimony,  the  following  cautions  are  suggested 
by  Mr.  Wharton  : 

1.  The  onus  of  everything  essential  to  establish  the  charge  lies  on 
cnutioni  '^^  prosecutor.  In  other  words,  the  defendant's  guilt 
"'"■  must  be  made  out  by  evidence  sufficient  to  exclude 
any  reasonable  supposition  of  his  innocence. 

2.  There  rnust  be  clear  and  unequivocal  proof  of  the  corpus  de- 
licti. The  fact  of  the  commission  of  the  offence  is  necessarily 
the  foundation  of  every  criminal  prosecution;  and  until  this 
fact  is  proved,  it  is  always  dangerous  to  convict. 

Sec.  336.  The  observations  which  have  now  been  maiio  will 
be  sufficient  to  exhibit  the  nature  and  use  of  circumstantial  evi- 
dence, and  to  show  that  there  is  no  ground  for  the  popular  im- 
pression that  it  is  necessarily  inconclusive  or  imperfect  in  its 
„  .  .,         character.     Errors  ami  mistakes  may  sometimes  oc- 

Not  objec-  •' 

tionabie.  ^^^  j^^  ^^^^  application  of  its  principles;  but,  as  a 
learned  judge  once  remarked,  the  same  objection  applies  where 
the  proofs  have  been  positive  and  direct  from  witnesses  who 
have  deliberately  forsworn   themselves.     We  cannot  for  such 


OF   EVIDENCE.  208 

reasons  abandon  our  faith  in  human  testimony,  witliout  Bub- 
verting  the  whole  foundation  of  administrative  justice.* 

Sec.  337.     We  will  now  pass  to  a  brief  review  of  the  most 
prominent  "and   ])ractieal  rules  which  govern  courts 

General 

martial  in  the  admission  of  evidence,  both  direct  and     mieitob* 

obgerTed. 

circumstantial. 

1.  All  irrelevant  evidence  is  to  be  excluded.     In  other  words, 
the  evidence  is  to  be  confined  to  the  issue.     Nothing, 

Evidence  to 

then,  can  propcrlv  be  received  as  evidence  which  does    be  confined 

'  '        '         •'  tolMue. 

not  tend  directl}'  to  prove  or  disprove  the  matter  in 
issue  Thus,  in  an  action  of  trespass  for  battery,  it  could  not 
be  proved  under  the  general  issue  that  the  plaintiff  committed 
the  first  assault,  for  that  is  not  the  issue.  But  sometimes  facts 
and  circumstanoes  connected  with  a  former  offence  out  of 
which  a  later  offence  has  grown,  may  be  given  in  evidence  to 
show  tlic  quo  animo  or  motive  of  the  prisoner  respecting  the 
subsequent  transaction. f  There  must,  however,  have  been 
some  connection  between  the  two,  for  it  would  not  be  allowed 
to  introduce  evidence  of  a  distinct  oflFence,  having  no  reference 
to  or  bearing  upon  that  for  which  the  party  is  on  trial.  This 
principle  may  be  illustrated  by  reference  to  the  crime  of  deser- 
tion. Here  any  fact  connected  with  the  ab.sence  of  the  pris- 
oner, going  to  show  an  intention  on  his  part  not  to  return,  may 
be  inquired  into.  But  such  evidence  is  not  to  operate  in  any 
way  to  determine  the  nature  or  degree  of  punishment  for  the 
act  of  desertion,  as  it  is  admitted  solely  to  (show  the  existence 
of  a  specific  offence. |  The  proper  test  would  seem  to  be  that 
nothing  should  be  received  as  evidence  from  which  a  natural 
and  reasonable  inference  may  not  be  drawn  as  to  the  truth  or 
falsity  of  the  disputed  fact;  and  the  court  must  exercise  a 
sound  discretion  in  dlHcriminating  between  facts  connected 
with  the  issue  and  such  as  are  merely  collateral. § 


•  Jadg«  81017.  X  Dc  Hart,  343. 

t  WharioD'f  C.  L.,  Mt.  |  2  SUrkic,  Ml. 


204  junoE  advocatk's  VAnn  mecum. 

Sec.  338.     BcTIart  obsei-voR,  in  this  connection,  tliat  tlu*  ]>ris- 
onor  may.  undor  tlic  ploa  of  not  guilty,  wliidi  ]nits  in 

Mutterd  in        .  r.      i  i  ... 

excuse  nnj     issuc  tlic   material   parts  at   the  charge,  give  m  evi- 

eztrnuatioD.  ""  "^ 

dence  matters  of  justification,  excuse,  or  e.xtenuation, 
and  if  other  acts  besides  tliose  whicii  are  the  sul'ject  of  the 
charge  have  been  proved  against  him  to  shuw  his  design,  he 
will  lie  jiermitted  to  ex])lain  those  jiarts  of  his  conduct;  and 
for  this  purpose  he  may  give  in  evidence  other  contempornneous 
acts  (but  such  only),  to  show  a  different  design  from  that  im- 
puted to  him.* 

Sec.  339.     Character. — The  moral   character  of  the   accused 
Character  of  ^^7  somctimcs  be  Offered  in  evidence  in  his  behalf, 
'*^"**'''        as  in  some  instances  it  may  afford  a  presumption  of 
liis  innocence  of  a  particular  act.     It  can  be  offered  in  this  gen- 
eral way,  however,  only  in  doubtful  cases,  as  aflonling 

Evidenco  '  .  • 

Mto.  ground  for  the  belief  that  a  person  of  known  probity 

or  humanity  would  not  be  likely  to  commit  a  disgraceful  or 
outrageous  aetjf  and  such  evidence,  when  the  testimony 
against  the  accused  is  doubtful,  may  often  be  sufficient  to 
warrant  his  acquittal.  But  generaUij,  character  intended  to 
influence  the  finding  of  the  court  must  be  relevant  to  the 
particular  charge  —  for  it  would  be  absurd,  when  considering  a 
charge  of  theft,  to  admit  evidence  of  character  for  courage;  or 
character  for  honesty,  wlu're  the  charge  was  cowardice.]; 

Sec.  340.     The  prosecution  cannot  impeach  the  character  of 
the  accused   till   the  latter  has  adduced  evidence  in 

Not  to  bo  „  .  ,  ,  ,  .     , 

inipcaciiej     Bunport  of  it:   and  cannot  even  then  go  into  particu- 

till. 

lar  facts, §  hut  is  coi-tiiicd   to  the  general  character  of 

the  defendant. II  Nor  can  the  prosecution  bo  admitted  to  show 
the  tendency  of  the  defendant  to  commit  a  particular  crime, 
though  it  be  the  crime  charged,  or  that  the  deceased  teas  of  bad 
character,  quarrelsome,  and  riotous.^ 


•  De  Hart,  344.  %  Do  Hart,  3 1(5.  ||  2  Starkie,  366. 

t  2  Starkie,  364.  ?  Wharton,  294!  %  Wharton,  295. 


OF    EVIDENCE.  205 

Sec.  341.  Trials  for  imitiny  and  sedition  frequently  occur  in 
courts  martial,  aiul  it  is  important  to  consider  the  rule 

Slutiny. 

of  relevancy  in  the  testimony,  with  rei^ard  to  them. 

Evidence  sucli  as  would  he  comjietent  to  prove  a  cons])ii*acy 
would  be  admissible,  according  to  De  Hart's  opinion,  to  prove 
sedition  and  mutiny  before  a  court  martial.  What,  then,  is  a 
^^  conspiracy''  f 

*'  The  offence  of  conspiracy-  consists  not  in  the  accompliah- 
ment  of  an   unlawful   purpose,  nor   in   any  one  act 

,  .  ,  ■  Conspiracy. 

moving  toward  tiiat  purpose,  but  in  actual  concert  or 
agreement  of  two  or  more  persons  to  elfect  something  which, 
being  so  concerted  or  agreed,  the  law  regards  as  the  object  of 
an  indictable  conspiracy."  *  *  There  are  two  classes  of 
cases  wiiere  the  criminalit}'  of  a  conspiracy  is  obvious:  1. 
Where  the  act  to  be  done  is  unlawful ;  2.  Where  the  means 
proposed  to  accomplish  a  lawful  act  are  tlieraselves  unlawful.* 
A  single  person  cannot  be  said  to  be  guilty  of  a  conspiracy;  it 
must  be  by  two,  at  least.f 

But  it  is  different  in  this  respect,  at  least  in  a  military  view, 
as  to  the  offences  of  mutiny  and  sedition;  for  although,  says 
Dellart,  two  or  more  persons  are  frequently  parties  thereto,  it 
does  not  require  more  than  one  to  render  such  offences  com- 
plete. They  may  originate  and  conclude  with  a  single  person, 
and  be  as  complete  with  one  actor  as  a  thousand.  At  law, 
seditious  words,  though  only  spoken,  no  matter  by  whom  or 
what  number,  are  indietable. 

Sec.  342.     What  evidence,  then,  may  be  admitted  under  the 
rule  of  relcvanc},  in  trials  before  courts  martial  for 
these  ofiences  .'^     In  general,  any  evidence  tending  to   n..c«»wy  in 

m  tit  in},  etc. 

prove  the  fact,  whether  direct  or  presumptive,  is  ad- 
missible, if  ref^rrible  to  the  issue.     The  acts  and  declarations 
of  the  prisoner  bearing  on  the  fact  are  of  course  to  be  adiiiit- 


•  SergVMit  Talfourd.  in  Wb«rt'.n.  765.  +  Il.id.  792. 


206  JUDGE  advocate's  vade  mecum. 

ted;  and  as  in  these  cases  the  act  of  one  in  the  act  of  all,  those 
of  any  parties  with  whom  the  prisoner  lias  conspired  may  bo 
•given  in  evidence  against  him  whenever  they  are  such  as  could 
bo  used  against  the  rest.  The  same  is  true  of  their  declara- 
tions, pjuch  is  deemed  to  command  or  assent  to  what  is  done 
by  an}^  other  in  furtherance?  of  the  common  object.  But  it  is 
said  a  foundation  must  first  be  laid  by  evidence  sufficient  in 
the  view  of  the  court  to  establish  prima  facie  the  fact  of  a  con- 
spiracy between  the  parties  before  their  acts  and  declarations 
can  be  admitted  against  each  other.*  Upon  the  same  princi- 
ple, letters  and  papers  in  the  custody  of  the  i)risoner  or  of  his 
accomplices,  if  bearing  on  tiic  issue,  niay  be  used  in  evidence 
against  him.  Sucli  documents,  however,  must  relate  to  the 
general  design  of  the  parties.  If  they  appear  to  bo  mere  pri- 
vate opinions,  unconnected  with  that  design,  they  arc  inadmis- 
sible. 

Sec.  343.     But  the  whole  conduct  of  the  prisoner  is  to  bo 
considered  in  such  cases;   and  hence  it  would  obvi- 

Whole  oTi-  11.  .  ,, 

dencetobe     ouslj'  bo  improper  to  read  a  portion  of  any  paper  or 
letter,  or  to  relate  only  parts  of  his  conversations, 
or  those  of  his  coadjutors. 

It  is  of  course  competent  for  the  accused  to  rebut  the  evi- 
dence against  him  l)y  testimony  of  the  same  charac- 

Rebutting  ®  J  J 

eTidence.  ^q^^  providcd  it  is  conuectcd  in  point  of  time  and  of 
subject  matter  with  the  acts  and  declarations  proved  against 
him.f 

Sec.  344.     2.  It  is  sufficient  if  the  substance  of  the  issue  be  proved. 

It  is  essential  that  the  allegations  against  the  accused 

tionstobe      should    be   supported    by   corresponding   proofs.      It 

proved. 

would  be  manifestly  unjust  to  convict  a  man  on  proof 
of  only  part  of  a  separate  and  independent  chiyge;  and  even 
if  it  could  be  maintained  that  part  was  sufficient  to  show  guilt, 

*  Wharton'B  C.  L.,  324.  f  De  Hart,  362. 


OF    EVIPENCE.  207 

how  could  it  be  known  by  the  accused  to  what  particular  part 
of  the  charge  the  prosecution  would  be  addressed.  To  pre- 
vent injustice  and  surprise,  it  is  therefore  established  as  a 
general  rule  in  the  law  of  evidence,  that  every  material  and 
essential  allegation  in  a  charge  or  indictment  must  be  proved 
as  averred.*  Thus,  if  the  charge  should  be  murder,  which  is 
killing  with  malice,  both  the  killing  and  the  malicious  intent 
must  be  proved.  But  this  rule  is  qualified  by  another  now 
to  be  considered,  in  connection  with  which  it  ought  to  be 
taken,  for  it  is  also  a  rule  that  it  is  sufficient  if  the  8„b,tance 
substance  of  the  issue  be  proved,  that  is,  saj's  Mr. 
Starkie,  it  is  sufficient  if  part  of  what  is  alleged  be  proved, 
provided  it  be  sufficient  to  support  the  issue;  but,  he  adds,  no 
allegation  descriptive  of  that  which  is  essential  to  maintain 
the  issue  can  ever  be  rejected. f  The  test  in  such  cases  is  this: 
if  an  averment  may  be  omitted  or  struck  out  of  the  charge 
without  affecting  it  materially,  that  is,  without  destroying  the 
cause  of  complaint,  it  will  be  unnecessary  to  prove  such  aver- 
ment.]; Hence,  it  is  enough  to  prove  so  much  of  the  indict- 
ment as  shows  the  defendant  to  have  been  guilty  of  the  sub- 
stantive crime  charged.  Thus,  if  he  is  charged  with  having 
done,  or  caifsed  to  be  done,  a  particular  act,  it  is  sufficient 
to  prove  either.  So,  if  two  distinct  intents  are  charged,  only 
one  need  be  proved.  The  offence,  however,  must  be  of  the 
same  class  with  that  charged;  for  instance,  on  an  indictment 
for  murder,  manslaughter  maj'  be  found ;  but  a  charge  of 
larceny  could  not  bo  supported  by  evidence  of  having  merely 
received  the  stolen  good8.§  A  minor  offence  is  included  in  the 
greater;  therefore  it  is  said  a  defendant  indicted  for  an  assault 
with  a  felonious  nifent  may  be  convicted  of  a  simple  assault. 
And  80,  a  soldier  charged  with  desertion  may  be  found  guilty 


•  1  .^tdrkie,  387.  J  1  Pbil.  Et.,  168. 

t  3  StArkie,  287.  }  Wb»rton'»  C.  L.,  286,  28ft. 


208  JUDGE  advocate's  vade  mecum. 

of  absence  tcithout  leave,  for  absence  is  the  chief  oues- 

Dwertinn  ' 

and  abHtnci-   j_j(j„   J,,  jsHue,  whilc  llic  iiitoiit  uiid   iiiolivc   iiiaUc  up 

witboul  '  I 

''^*"'  the   charueter   of  the    otfeiice.     So,    also,   generally, 

observes  De  Hart,  "in  all  accusations  where  the  proof  is  in- 
sufficient to  warrant  conviction  of  the  spocitic  oftence  laid  in 
the  chari^e,  but  a  substantial  offence  has  been  made  out  to  the 
prejudice  of  good  order  and  military  discipline,  the  verdict 
may  be  found  accordingly.  But  in  every  case  ot  this  kind, 
where  a  minor  degree  of  guilt  is  found,  it  must  be  understood 
that  a  breach  of  a  particular  Article  of  war  is  not  expressly 
and  exclusively  laid  in  the  charge."* 

If  in  an  indictment  or  charge  a  person  or  thing  is  de- 
scribed with  greater  particularity  than  is  necessary,  it  yet 
may  often  prove  requisite  that  the  particular  cii-ciiinsiances 
set  forth  should  be  established  for  the  purpose  of  identit}*. 
Greater  strictness  is  also  necessaiy  in  reijuiring  proofs  in  crim- 
inal than  in  civil  matters. 

The  name  of  the  accused  ought  to  be  correctly  stated ;  yet 

wrong  spelling  is  not  lalal  if  it  be  idem  sonaus  with 

the  name  which  is  proved.]" 

Sec.  oA').     The  jurisdiction  of  military  courts  does  not   de- 

.  .,   ,       i)eiid  on   the  i>arlicnlar  i)lace  where  the  crime  is  com- 

a- to  pemuii.  jj^jQ^j  L»„i  i,p,j,,  I  he /ur.so/t  offcndlng,  and  the  descrij)- 

tion  of  his  offence.     "Still,  it  is  necessary  in  framing  a  military 

charge  that  the  place  where  the  off'once  is  suj)j)osed 
^^'  to  have    been   committed    should    be    laid    with    cer- 

tainty, as  it  may  be  essential  to  the  defence  of  the  jti-isoner; 
but  it  does  not  follow  that  a  variance  between  the  proof  of  the 
place  where  the  crime  was  committed  and  that  laid  in  the 
charge  should  acquit  the  prisoner — it  is  sufficient  to  identify 
him  as  the  perpetrator  of  the  olfence."|  "A  soldier,  then, 
accuseil  ol"  deserting   from  one    jilace   on    the    lii-st   day  of  a 

•  Do  Hart,  369.  t  WbarL.n'a  C.  L.,  278.  J  De  Hnrt,  367. 


OP   EVIDENCE.  209 

particular  month,  but  who  oti  the  trial  was  shown  to  have 
deserted  on  the  specified  day  from  a  different  place,  would 
justly  he  convicted,  for  the  essence  of  the  crime  is  made  out. 
*  *  *  But  if  the  time  and  place  proved  were  so  variant 
from  those  in  the  charge  that  there  was  a  pdssibilit}'  of  the 
prisoner  having  repeated  the  offence,  he  would  necessarily'  be 
acquitted,  for  the  act  charged  and  the  act  proved  may  have 
been  different  offences."* 

Sec.  346.  In  general  the  <«me  of  the  commission  of  an  of- 
fence is  not  important,  as  it  does  not  confine  the 
proofs  within  the  limits  of  the  period  stated;  and 
an  indictment  will  be  satisfied  by  proof  of  the  offence  at  any 
day  anterior  to  the  finding.  But  this  is  to  be  understood  only 
where  time  is  not  of  the  essence  of  the  offence,  or  is  not  in- 
volved in  some  material  fact;  for  every  7nat€rial  fact  in  issue 
ought  to  be  laid  at  a  certain  time.  And  if  the  particular  time 
laid  is  material  to  sustain  the  charge,  it  must  in  such  cases  be 
proved  as  laid.f 

Sec.    347.      In    connection    with    this   subject   of  time   and 
place  may  be  mentioned   the  defence  which   the  ac- 

1  •  ■  1  /I       /•.  II-  Alibi. 

cused  sometimes  sets  up  m  the  proof  of  an  alibi. 
This  defence  cannot  avail  in  military  trials  where  the  crime  al- 
leged is  proved  to  have  been  committed  by  the  prisoner  at  the 
time  stated,  though  at  a  different  place:  for  here  the  crime  and 
the  prisoner  are  sufficiently  connected,  and  the  statement  as  to 
the  place  is  mere  error.  But  if  the  general  fact  that  a  crime 
has  been  committed  at  a  particular  place  is  proved,  and  the 
question  is  one  of  the  prisoner's  identity  with  tlie  perpetrator, 
evidence  of  the  prisoner's  having  been  at  another  place  when 
the  criminal  act  was  done  establishes  the  alibi^  and  will  he 
sufficient  to  acquit  him.  It  is  obvious  then  that  both  time  and 
place  may  be  material  considerations  in  a  charge,  and  it  is 
important  to  guard  against  error  in  setting  them  forth.     But, 

•  De  Hart,  .167.  f  Wharton,  27». 

14 


210  JUDGE  advocate's  vade  mecum. 

as  already  noticed,  the  jurisdiction  of  courts  martial  not  being 
limited  as  to  place,  mistakes  as  to  place,  except  where  that  is 
jmaterial,  will  not  affect  the  proceedings;  and  the  acts  of  the 
;a£<'used  tending  lo  establish  the  charge,  no  matter  where  coni- 
iinitted,  arc  admissible  in  evidence.* 

Skc.  348.  In  connection  witli  the  rule  that  ^^ the  substance  of 
■83d  Article  '^^  issuc  need  only  be  proved,"  which  we  have  thus 
of  •Par.  bricfl}'  examined,  Captain  De  Hart  introduces  a  dis- 
cussion of  the  83d  Article  of  war,  and  as  the  subject  is  one  of 
importance,  his  remarks  are  here  transferred  in  extenso. 

The  Article  is  in  the  following  words :  "  Any  commissioned 
officer  convicted  before  a   general    court  martial    of 

Conduct  un-  ,  i  •  «.  i  ^ 

becomingan  conduct    Unbecoming    an   ofncer   and    a    gentleman, 

•  officer,  etc. 

shall  be  dismissed  the  service."  Upon  which  Cap- 
tain De  Hart  observes : 

"Such  is  the  language  of  the  law  —  a  law  intended  to  pro- 
serve  the  honor  and  morals  of  the  army,  as  a  distinctive  or 
professional  body. 

"  In  all  the  legislative  enactments  or  minor  regulations  for 
the  government  of  the  army,  it  is  to  be  observed  that 
'"""'  '°"*'  the  object  in  view  is  the  good  order  and  military  dis- 
cipline of  that  body;  it  would  therefore  appear  that  no  act  of 
a  military  person  which  does  not  offend  against  such  principle 
•could  be  hold  as  within  the  cognizance  of  a  court  martial.  In 
measuring  the  turpitude  of  any  conduct  by  the  law  just  quoted, 
it  is  necessary,  in  the  first  place,  to  state  with  particularity  the 
nets  of  which  the  prisoner  is  accused,  in  order  not  only  that 
he  may  be  possessed  of  all  fair  means  of  defence,  but  that  the 
court  may  have  likewise  the  j)Owcr  to  judge  of  the  reasonable- 
ness and  justice  of  the  imputations  which  the  charge  alleges. 
The  writer  is  aware  of  some  of  the  diflBculties  which  have 
been  thrown  around  this  subject  by  the  very  indistinct  and 

»De  Hart,  368. 


OF   EVIDENCE.  211 

confused  opinions  which  have  been  expressed  by  several 
British  military  writers  when  treating  of  a  similar  Article  of 
war,  for  the  government  of  the  English  arm}-,  and  by  the 
difference  which  exists  in  the  language  of  the  two  Articles  of 
war.  There  are  terms  employed  in  the  British  Article  which 
stand  as  a  guide  to  the  meaning  of  it,  which  have  been  dis- 
carded in  the  American,  but  when  the  subject  is  considered, 
must  necessarily  be  understood  as  implied  in  the  latter,  in 
order  to  give  it  a  proper  application. 

"The  Article  of  war  now  under  consideration  declares  that 
'any  commissioned  officer  convicted  before  a  general  court 
martial  of  conduct  unbecoming  an  officer  and  a  gentleman,  shall 
be  dismissed  the  service;'  whereas  the  British  Article  de- 
nounces the  penalty  of  cashiering  against  'any  oflScer  who 
shall  behave  in  a  scandalous,  infamous  manner,  unbecoming  the 
character  of  an  officer  and  a  gentleman.'  The  difference  ad- 
verted to  is  verj'  material,  and  in  one  affords  a  rule  by  which 
punishment  for  conduct  unbecoming  an  officer  and  a  gentleman 
is  to  be  measured,  or  furnishes  the  means  of  ascertaining  the 
description  of  such  conduct  so  as  to  bring  it  bj^  military  cog- 
nizance within  the  denunciation  of  the  law. 

"Now,  it  is  apprehended  that  conduct  unbecoming  an  oflBcer 
and  a  gentleman  before  it  can  be  legally  made  the 

What  ill  con- 

cause  of  punishment  must  be  shown   to  be  of  that  ''"'^'  ""*'«■ 

^  coming   ao 

kind  as  necessarily  to  reflect  disgrace  upon  the  body  ''"''^*'^'  *"^' 
to  which  the  offender  belongs.  And  this  disgrace  must  not  be 
such  as  the  accidental  or  capricious  judgment  of  different 
courts  martial  might  view  it  j  but  be  referrible  to  the  certain 
and  expressed  opinions  or  feelings  of  the  community  at  large. 
"By  this  it  is  intended  to  say  that  the  partial  judgmente 
of  men,  based  on  mere  professional  conventions  or  notions  of 
honor  (because  such  may  vary  with  different  men,  and  at 
various  places),  are  not  to  be  the  standard  altogether,  but 
that  the   imputations  grounded  on   the  particular  acts  which 


212  JUDGE  advocate's  vade  mecum. 

make  the  subject  of  the  charge  must  be  determined  or  re- 
jected according  to  the  established  and  acknowledged  morals 
of  the  Christian  world. 

''  The  article  in  question  does  not  particularize  any  species 

of  conduct  as  unbecoming  an   officer  and  a  gentle- 

d.-es  not  8|.e-  man,  but  leaves  that  to  be  determined  by  the  opin- 

cify  Conduct. 

ions  of  the  world,  or  by  those  of  the  court  martial, 
from  the  acts  alleged,  and  from  which  the  military  community 
might  be  picjudiced  or  receive  detriment  were  it  to  counte- 
nance behavior  in  any  of  its  members  which  was  of  such  a 
nature  as  to  involve  scandal  and  infamy. 

"There  are  undoubtedl}'  certain  acts,  which,  however  im- 
moral, do  not  import  infamy,  and  are  not  liable  in  any  of  the 
departments  of  social  life  to  punishment  by  declared  law. 
They  may  in  the  estimation  of  many  affect  the  standing  of 
the  individual  who  is  guilty  of  them,  and  yd  be  not  such  as 
either  to  debase  him  in  the  eyes  of  the  community,  or  exclude 
him  from  society. 

"  These  are  cases  in  whicli  it  is  believed  that  a  court  martial 
could  not  apply  the  stringent  powers  of  this  Article 

Standard  of  .  mi  •!• 

military  of  war  for  corrcctiou.  Lhe  military  community  can- 
conduct. 

not  expect,  nor  ought  it  to  be  expected  of  them,  to 

preserve  a  higher  tone  of  moral  conduct  than  what  is  sus- 
tained by  the  higher  orders  of  society.  The  means,  therefore, 
conceded  by  the  Article  in  question,  are  not  to  be  considered 
with  reference  altogether  to  such  a  purpose,  for  if  such  were 
the  case,  military  officers  would  be  subjected  to  a  capricious 
standard  of  judgment,  or  to  an  ordeal  which  but  very  few  men 
could  bear. 

"Mr.  Samuel  in  his  treatise  on  'military  law,'  when  spcak- 
inir  of  the   similar  Article    in    the  English   militar\- 

Mr.Samuel'8         °  o  ^ 

yifwsoftiie  (-ode,  savs :  'the  words  "officer  and  gentleman," 
^"^'^'  though    in    general    to  be   understood    as  one   single 

and  indivisible  term,  appear  not  to  be  used  so  here.     The  mis- 


OF  tVIDENCE.  213 

behavior  entailing  on  it  tlie  penalty  declared  b_y  this  Article 
must  be  such,  as  I  understand  it,  as  to  implicate  in  the  first 
place  the  officer;  that  is,  it  must  arise  in  some  sort  out  of 
his  office,  and  affect  incidentally  only  the  character  of  the  gen- 
tleman.' 

"  But  the  writer  must  disagree  with  such  an  exposition  of 
the  Article,  if  it  is  to  be  received  as  the  interpreta-    .„,  .  .. , 

'  '  8.,(1  Article 

tion    of  the   American    law  —  nor  does  the   practice    "^"'^"^ 
accord  with  such  an  explanation   of  it,  even  in  the  British 
service. 

"In  the  American  army,  a  charge  laid  under  this  particular 
Article  of  war  is  one  single  and  indivisible  tertn,  and 

Court   may 

cannot  be  broken  by  a  finding  of  the  court;  though,  Jj"r  d'c  "o 
when  such  conduct  as  the  breach  of  the  particular  "'^k"'"- 
Article  in  question  is  not  expressly  and  exclusivel}'^  laid  in  the 
the  charge,  the  court  may,  if  a  substantial  militarj'  offence  be 
shown  by  the  evidence  to  have  been  committed,  find  a  minor 
degree  of  guilt,  as  'conduct  prejudicial  to  good  order  and  mili- 
tary discipline;'  for  it  would  certainly  'be  a  strange  doctrine 
to  maintain  that  because  the  court  found  less  proved  than 
charged  no  punishment  should  be  awarded.' 

"  The  degree  to  which  certain  acts  may  impugn  one's  char- 
acter, as  conduct  unbecoming  an  officer  and  a  gentleman,  is  a 
matter  of  inference  for  the  judgment  of  the  court,  and  where 
such  imputation  is  denied  by  the  evidence,  there  must  be  an 
acquittal ;  the  facts  charged  niaj'  be  clearly  proved,  and  yet 
not  involve  the  guilt  alleged  by  the  accuser  in  the  charge.  For 
the  court  are  to  try  unofficerlike  and  ungentlemanlike  conduct, 
and  to  see  that  it  be  proved  as  it  is  alleged  —  or  to  find  such 
minor  degree  of  guilt,  under  the  restrictions  before  mentioned, 
as  the  nature  of  the  evidence  will  warrant. 

"  Tn  every  prosecution  before  a  court  martial  for  conduct  un- 
becoming an  officer  and  a  gentleman,  the  degree  of  the  offence 
must  be  such  as  to  reflect  discredit  ujton  the  body  of  the  army, 


214  '         JUDGE  advocate's  vade  mecum. 

or  the  nature  of  it  such  as  to  militate  against  the  requirements 
of 'good  order  and  military  discipline'  before  a  legal  convic- 
tion can  be  declared,  or  punishment  awarded,  according  to  the 
imperative  language  of  the  law  for  that  particular  charge,  or 
according  to  the  discretion  of  the  court,  if  a  modified  verdict 
be  returned. 

"  Acts,  therefore,  which  are  alleged  in  a  charge  of  this  char- 
acter, but  which  b}'^  the  court  are  divested  of  the  imputation, 
which  constitutes  the  crime,  and  which  are  at  the  same  time 
not  of  such  a  kind  as  would  of  themselves  constitute  a  breach 
of  good  order  and  military  discipline,  can  of  necessity  involve 
no  guilt — it  can  only  be  b}"  such  features  that  tliC}*  are  made 
cognizable  by  military  courts.  This  is  a  matter  for  the  atten- 
tion and  consideration  of  courts  martial,  whenever  a  charge 
under  the  particular  Article  of  war  now  in  review  is  laid 
before  them. 

"It  is  readily  perceived  that,  when  deliberating  upon  a 
charge  of  '  conduct  unbecoming  an  officer  and  a  gentleman,' 
some  officers,  members  of  the  court,  who  might  be  impressed 
with  any  high  notions  of  personal  and  professional  honor,  or 
possessing  a  very  refined  and  delicate  perception  of  Die  \)vo- 
prieties  wiiich  should  distinguish  a  gentleman,  would,  without 
strictly  regarding  the  intention  or  consequences  of  the  law  in 
question,  pronounce  a  verdict  of  guilty  when  in  reality  no  legal 
offence  had  been  committed.  To  prevent  such  errors  of  opin- 
ion, which  involve  the  legal  rights  of  others,  though  proceeding 
from  a  noble  sentiment,  is  the  purpose  of  a  just  explanation  of 
the  Article. 

"The  following  case,  quoted  from  McArthur,  by  Samuel,  will 

sufficiently  illustrate  the  subject:   'At  a  general  court 

casecited.      j^^j^j.j^jj^}  jjj,|^  ^^  ^j^^  Q^p^  ^y  ^^^^^  Hope,  May,  18U1,  an 

officer  was  tried  charged  with  scandalous,  infamous  conduct, 
unbecoming  the  character  of  an  officer  and  a  gentleman,  in 
having  sent  a  charge  of  £600  or  thereabouts,  against  Sir  George 


OF   EVIDENCE.  215 

Younge,  for  a  hoi-se,  wliich  the  said  officer  had  declared  to  be  a 
present  to  Sir  George,  when  Governor  of  the  Colony  of  the  Cape 
of  Good  Hope. 

"  '  In  respect  to  which  charge  the  court  martial  made  a  dis- 
tinction ;  they  acquitted  the  officer  of  scandalous,  infamous  be- 
havior, but  considered  his  conduct  nevertheless  as  unbecoming 
the  character  of  an  officer  and  a  gentleman,  for  which  they  ad- 
judged him  to  be  suspended  from  rank  and  paj'  for  the  space  of 
six  calendar  months. 

" '  The  proceedings  having  been  laid  before  his  majest}',  the 
Judge  Advocate-General  signified  to  Lieutenant- General  Dun- 
das^  the  commander-in-chief  of  his  niajesty's  forces  at  the 
Cape,  that  his  majesty,  laying  out  of  the  case  any  question 
touching  either  the  right  or  the  delicacy  of  the  officer's  claim 
to  a  compensation  for  the  horse,  concerning  which  the  differ- 
ence had  arisen  —  points  not  within  the  cognizance  of  a  court 
martial  —  considered  the  adjudication  as  irregular,  inasmuch  as 
the  court  had  acquitted  him  of  the  only  imputation  which 
could  bring  the  business  as  a  charge  before  them,  viz  :  of  any 
scandalous  or  infamous  behavior  in  the  transaction ;  his  maj- 
esty could  not,  therefore,  approve  the  sentence.  At  the  same 
time  it  was  signified  his  majesty  was  graciously  disposed  to 
attribute  the  error  to  the  nice  feelings  of  the  officers  who  com- 
posed the  court  martial,  which  had  marked  their  dislike  of  a 
conduct  which  appeared  to  them  not  decorous.' 

"The  above  case  exemplifies  what  the  writer  has  endeavored 
to  explain — that  it  is  not  all  conduct  which  offends  against  the 
delicate  proprieties  and  decorum  of  an  officer  and  a  gentle- 
man which  can  be  held  amenable  to  military  law,  l)ut  such, 
only  as,  while  it  impugns  the  character  of  an  officer  and  a 
gentleman,  at  the  same  time  casts  upon  the  military  commu- 
nity a  shade  of  discredit  and  reproach. 

"In  speaking  of  the  case  above  quoted.  Captain  Sinimons 
very  justly  remarks:  'An  officer  sending  an  improper  charge 


216  JUDGE  advocate's  vade  mepum. 

for  a  horse,  taken  abstractedly,  could  in  no  wise  affect  military 
discipline,  and  exceptin<^  as  it  might  implicate  the  individual 
character  of  an  officer,  in  a  degree  amounting  to  'scandalous, 
infamous  conduct,'  no  offence  under  the  Articles  of  war  could 
be  charged,  since  there  is  not  any  provision  in  the  Article  for 
tho  cognizance  of  unofficerliUe  and  ungentlemanl}'  conduct 
(divested  of  a  tendenc}'  to  affect  good  order  and  military  dis- 
cipline) in  any  degree  less  than  that  involving  infamy  and 
scandal.' 

"  The  distinction  thus  observed  b}-  Captain  Simmons  will 
undoubtedly  be  of  aid  in  all  questions  brought  befoi-e  courts 
martial  for  adjudication,  and  which  arc  laid  under  the  S3d 
Article  of  war.  Thus,  a  charge  of  unofficerlike  and  ungentle- 
manl}-  conduct,  when  divested  of  all  tendency  to  effc(jt  good 
order  and  military  discipline,  and  at  the  same  time  involving 
no  moral  turpitude  of  such  a  kind  as  would  reflect  discredit 
upon  the  militar}-  community,  cannot  be  deemed  cognizable 
by  a  militar}'  court." 

Sec.  349.  3.  Another  of  the  cardinal  rules  of  evidence  is 
that  the  affirmative  of  the  issue  must  generally  he  proved.  A  nega- 
tive does  not  admit  of  the  simple  and  direct  proof 

Ne.;ativ(>  not      „        ,   .    ,  .  .  .  111  1 

geiieraiiy  to  of  wlucli  an  amrmative  is  capable,  hence   the  ])arty 

be  proved. 

who  alleges  the  affirmative  of  any  proposition  is  re- 
quired to  prove  it.*  And  it  is  a  general  rule  that  the  onus 
probandi  rests  upon  the  person  who  seeks  to  support  his  case 
by  a  particular  fact  of  which  ho  is  sujjposed  to  be  cognizant. 
Thus,  a  party  who  pleads  infancy  must  prove  it.f 

But  where  the  negative  involves  a  criminal  omission  by  the 
party,  of  which  the  law  of  course  pi-esumes  his  innocence,  tho 
affirmative  of  the  fact  is  also  jiresumed;  and  the  alfirmativo 
being  thus  assumed,  it  lies  on  him  who  denies  the  fact  to  prove 
the  negative,  as  in  presumptions  of  the  continuance  of  life,  the 
legitimacy  of  children,  the  satisfaction  of  debts,  etc.  These, 
*  1  Starkie,  376.  f  Ibid,  377. 


OF    EVIDENCE.  217 

ami  all  legal  presumptions,  continue  till  they  are  negatived  by 
the  party  denying  them.* 

Sec.  350.  4.  The  best  attainable  evidence  must  always  be  pro- 
duced This  rule  applies  to  the  qualify  of  evidence,  and  not 
its  measure  or  quantitj-;  for  it  is  not  necessary  to  j,^^,,^^^.,,,^ 
give  the  fullest  proof  in  every  case.  A  fact  may  Ijq  "*"""«" '^  • 
sufficiently  proved  by  one  witness,  though  known  to  several. 
The  meaning  of  the  rule  is  that  no  evidence  of  an  inferior  char- 
acter can  be  substituted  for  that  which  is  superior,  if  the  latter 
can  be  procured.  Thus,  the  contents  of  a  writing  cannot  be 
proved  by  a  copy  or  by  oral  evidence  when  the  original 
can  be  produced,  for  that  is  the  best  evidence. f 

Sec.  351.  This  rule  is  adopted  for  the  prevention  of  fraud, 
and  its  proper  observance  is  of  great  importance,  for  Q^^.^^^  ^j. 
the  inference  is  natural  that  when  evidence  of  a  «  rup- 
higher  order  is  withheld  it  is  unfavorable  to  the  party  conceal- 
ing it.  But  the  rule  assumes,  in  excluding  inferior  evidence 
that  better  can  be  obtained ;  for  it  never  excludes  evidence 
which  is  the  best  that  can  be  produced.  Hence,  where  a  deed 
is  shown  to  be  lost  a  copy  may  be  given  in  evidence,^  when 
dulj-  authenticated,  and  the  law  does  not  require  the  strongest 
possible  proof  of  a  fact,  but  only  evidence  of  the  best  pos- 
sible kind  which  can  be  obtained. 

"OiTences  are  at  times  committed  with  such  privacy  that  it 
is  impossible  to  prove  them  otherwise  than  by  the  testimony 
of  the  party  injured;  such  evidence  becomes  then  tlie  best 
possible  kind  of  which  the  case  admits,  *  *  *  and,  where 
n  )  doubt  of  the  credibility  of  the  witness  exists,  is  considered 
sufficient  to  warrant  a  conviction. "§ 

Skc.  352.  The  result  of  this  rule  of  evidence  is  a  distinction 
between  primary,  or  the  best,  and  secondary,  or  in-  primnrynnii 
forior  evidence.     Secondary  evidence  cannot  be  ad-  p»'J»nt». 

•  I  Btarkie,  377,  3S0.     Wharton'i  C.  L.,  2S4.  and  tee  tec.  361. 

t  1  etarkip,  390,  391.  X  Ihid,  392.  'i  Do  Hart,  367. 


218  JUDGE  advocate's  vade  mecum. 

mittcd  until  proof  is  given  that  better  cannot  be  obtaineii. 
But  a  distinction  also  exists  between  secondary  and  merely 
defective  evidence.  The  latter  mi\y  bo  admissible  as  tt-ndimj 
to  prove  the  issue,  though  insufficient  to  do  so,  notwithstand- 
ing it  is  shown  that  better  cannot  be  had;  while  the  former 
evidence,  though  secondary  in  character,  may  yet  be  adequate, 
when  adniiltcd,  to  establish  the  point  in  dispute.* 

Sec.  35o.     It   has  just  been   remarked   that   secondary  evi- 
dence cannot  be  received  by  the  court  without  proof 

Secondary  i         i  m 

not  received,   tluit  bcttcr  cvidcnce  cannot  be  had.     Ihe  nature  of 

except. 

such  proof  of  course  depends  on  circumstances. 
Where  documents  are  lost  or  destroyed,  the  fact  must  bo 
shown  to  the  satisfaction  of  the  court;  or  if  in  the  hands  of 
other  or  adverse  parties,  notice  to  produce  them  must  be  given 
and  dul}^  proved  before  copies  can  be  read.f  Due  diligence  to 
recover  the  lost  document  must  also  appear;  but  if  it  cannot 
be  found  in  its  usual  and  proper  place  of  custody,  or  accounted 
for  by  the  legal  custodian,  the  court  will  presume  that  it  has 
been  lost,  and  will  receive  evidence  of  its  contents. 

Sec.  354.     There  are  some  exceptions  to  the  rule  requiring 

the  best  evidence  to  be  produced,  which  are  the  joint 

Ex»-|)tii)ni  ■ 

to  rule  re-    reguH  of  nccessitv  and  convenience.     A  few  will  bo 

quiring  beat  J 

evuience.  specified.  A  pcrson  who  is  generally  known  and  ad- 
7iiitted  as  a  public  officer,  may  generally  officiate  without  pro- 
ducing his  commission,  and  his  acts  are  prima  facie  received  as 
legal.  The  contents  ol'  any  record  oi'  a  judicial  court,  and  of 
public  books  and  registers,  may  be  proved  by  examined  copies. 
So,  where  the  evidence  is  the  result  of  voluminous  facts  on  the 
examination  of  man}'  books  and  papers  not  to  be  conveniently 
produced  in  open  court,  the  general  result  it  is  said  may  bo 
stated,  as  the  sijlvcncy  of  a  party  at  a  particular  time,  or  tho 
military  character  and  history  of  a  soldier  as  shown  by  the 

♦  DeUart,  357.  f  Wharton,  C.  L.,  a03. 


or   EVIDENCE.  219 

records  of  a  department.    So,  also,  inncriptions  on  walls,  grave- 
stones, and  monuments.*     With  respect  to  persons  in 

Commission 

the  army,  it  is  "  sufficient  to  prove  that  they  acted  in    "f  ""ifer. 
the  character  set  forth,  without  producing  their  appointments; 
and  therefore,  upon   a  charge  of  disobedience  or   neglect  of 
orders  against  an  officer  or  a  soldier,  it  is  sufficient  to  show 
that  the  officer  giving  the  orrler  had  previously,  in  the  knowl- 
edge of  the  accused,  acted  in   the  capacity  alleged. 
And  a  prisoner  may  be  proved  a  soldier  by  showing 
that  he  received  pay  as  such,  and  acted  in  the  capacity  of  one, 
without  producing  or  proving  his  enlistment. "f 

Sec.  355.  Handwriting  may  be  proved  by  the  admission  of 
the  party;  or  by  any  person  who  has  seen  him  write,  ,ian^„r„jn 
or  been  in  the  habit  of  corresponding  with  him,  with-  '"'"^  proved. 
out  seeing  him  write,  or  even,  it  is  said,  of  acting  upon  his 
correspondence. I  But  the  means  of  such  knowledge  in  the 
witness  should  be  carefully  scrutinized.  A  person  whose  name 
has  been  forged  is  admissible  to  prove  the  forgery. §  Gener- 
ally, comparison  of  handwriting  by  witnesses,  for  the  purpose 
of  proving  the  writer  or  his  signature,  is  inadmissible;  but  the 
court  or  jury  may  compare  a  document  with  authentic  writing 
of  the  party  to  whom  it  is  ascribed,  if  such  writings  are  in  evi- 
dence for  other  purposes  in  the  same  cause.  It  is  also  compe- 
tent to  adduce  the  testimony  of  experts,  or  persons  skilled  with 
respect  to  monej'  and  handwriting,  and  who  have  seen  what 
have  generally  passed  as  the  signatures  of  the  officers  of  a 
bank,  though  they  have  never  seen  them  write. ||  The  best 
evidence  of  handwriting,  however,  is  the  admission  of  the 
party,  or  the  testimony  of  witnesses  who  know  the  writing  in 
question. 


*  Whftrton'n  C.  L.,  302.  iO^.  J  Wharton'*  C.  L.,  586. 

t  De  Hart,  .360.  ?  Ibid,  5S«. 

I  Wharton's  C.  L.,  680,  bS7.     See,  alco,  2  SUrkie,  6i0. 


220  JUDOE  advocate's  vade  mecum. 

Sec.  356.  5,  Cotifi'ssions  and  declarations,  (^onneotcd  with 
„  ,  .  the  rule  we  have  just  considered,  is  the  subject  of  the 
*'**^"  dochiralioiis  and  confessions  of  the  accused. 

A  free  and  voluntar}'  confession  l»y  the  accused,  before  or 
after  his  arrest,  to  anv  person,  is  evidence  against 

Must   be  *       *  * 

pro..fof  cor-  ],j,^^  .    r^i^d    ^vhen    satisfactorilv   pi-oved,    after    proof 

pus    (iclirti.  '  .^         I  '  I 

fi^I'inn  "IT     also  of  the  corpus  delicti,  or  act  constituting  the  of- 
fence, is   generall}'  sufficient  to  convict.*      And   yet 
the  numerous  instances  reported  in  which  convictions  on  the 
mere  confession  of  the  accused   have  proved  erroneous,  render 
this  species  of  evidence  far  less  satisfactory  than,  rea- 

Generally  un-  '  •' 

satisfactory.    gQi^jj^g  from  thc  Ordinary  course  of  human  conduct,  it 
Tnnj  appear  to  be;  so  that,  observes  the  author  so  often  quoted 
already, f  there  exists  a  growing  unwillingness  to  rest  convic- 
tions on  confessions  alone.     But  a  confession,  before 

MuBt   bo  ' 

voluntary,  j^  ^^^  ^^  reccivcd,  must  appear  to  have  been  freely 
and  voluntarily  made;  therefore,  if  it  has  been  induced  by  any 
hope  or  promise,  or  extorted  by  fear  or  pain,  it  is  inadmissible 
in  evidence.  The  influence,  however,  to  render  it  objectionable 
must,  it  is  said,  be  of  a  temporal  character  only:  for  such  as 
refer  to  a  future  state  arc  not  considered  in  the  light  of  im- 
proper influences,  and  would  not,  therefore,  of  themselves  ex- 
clude the  confession. I 
Moreover,  in  order  to  shut  out  evidence  of  a  prisoner's  con- 
fession, it  must  appear  affirmatively  that  some  induce- 
nnist npiRiir  mcut  was  presented  to  him,  by  or  m  tiie  presence  oi 

timt    it   u:i8 

iiiiprupeiiy  somc  pcrsou  luiviii'T  authority.  The  i)recise  words  or 
terms  are  unimportant;  but  the  court  are  to  deter- 
mine their  probable  and  reasonable  effect  on  the  mind  of  the 
accused;  and  if  evidence  of  any  declaration  or  cojifession  be 
admitted,  and  it  is  afterward  discovered  that  it  has  been  made 

♦Wharton,  313. 

f  Ibiil,  .31.3,  and  sec  the  cases  cited  in  proof  of  thc  danger  of  relying  on  such 
evidence.  J  Ibid,  317. 


OF    EVIDENCE.  221 

under  an}^  undue  or  improper  influence,  tlie  court  will  dii'cct  it 
to  be  stricken  out,  or  instruct  tiie  jury  to  disregard  it.* 

Sec.  357.  A  confession  obtained  by  artifice  only,  without 
threat  or  promise,  is  admissible  in  evidence  :    for  in  . 

such   cases  the    party,  though   deceived,  has  spoken    g';'i"fi;.'p''a^/- 
under  no  improper  influence,  at  least  none  winch  ma^ 
be  supposed  to  excite  the  feelings  or  bias  the  judgment.     And 
so  it  has  been  held  that  discoveries  made  by  means 

Discoveries 

of  a  confession  in  itself  improperly  procured,  may  be  ''yr'«""n"'f- 
used  in  evidence  if  in  other  respects  such  discoveries  are  unob- 
jectionable. 

Sec.  358.  Confessions  are  of  course  evidence  only  against 
the  party  who  makes  them,  except  in  cases  of  con- 

,  1  J       1  •  !>  Confessions 

spiracy,  mutiny,  etc.,  where  the  declaration  oi   one  evidence  only 

agaiiiHt  the 

party  may,  after  proof  of  the  con.spiracy,  be  given  in  party  gener- 
cvidence  against  all.f 

It  is  to  be  observed,  also,  that  the  whole  of  a  man's  confes- 
sions are  to  be  taken  toijether.     One  part  cannot  be 

®  *  The  whole  to 

offered  in  evidence  and  another  rejected.  The  court,  ''«e'»en. 
however,  is  not  bound  to  credit  the  wludo,  but  may  for  suffi- 
cient reasons  reject  a  part,  and  accept  as  true  the  rest.  Truth 
and  falsehood  are  often  mingled  together;  and  when  thus  pre- 
sented in  evidence,  it  is  the  province  of  the  court  who  are  to 
try  and  determine  the  facts  as  well  as  the  law,  to  consider  what 
is  true  and  reject  what  is  false. 

Sec.  359.  It  is  proper  here  to  add  that  as  no  evidence  can 
be  received  to  contradict  the  record,  so  none  need  be  ofll'cred  to 
prove  any  point  which  the  record  admits. 

Sec.  360.  Presumptions  of  Law. — Wo  conclude  this  chapter 
by  a  bare  reference  to  certain  conclusions,  or,  as  they  are 
termed,  presu7nptions  of  the  law,  as  to  which,  until  contradicted, 
no  proof  is  required. 

1.   The  presumption  of  innocence. — Everyman  is  j)rc8umcd  to 

•  Wharton,  321.  .022.  f  Ante,  tec.  841. 


222  JUDGE  advocate's  vape  mecum. 

be  innocent  till  the  contrary  is  proved ;  and  if  there 
tionB  "in-     be  reasonable  doubt  as  to  his  guilt,  he  must  receive 

noc«Dce. 

the  benefit  of  such  doulit.  lU'iice,  in  criminal  trials 
the  testimony  ought  to  be  such  as  to  satisfy  the  jury  beyond  a 
rational  doubt  of  the  guilt  of  the  prisoner,  or  it  is  their  duty 
to  acquit  him. 

2.  Presumption  of  intent. — The  law  presumes  the  natural  and 
probable  consequences  of  every  act  deliberately  done 
to  have  been  intended  by  the  author.     Thus,  malice  is 
presumed  in  every  act  of  the  deliberate  killing  of  another. 
8.  Presumption  that  official  acts  are  legally  and  properly  per- 
formed.— Where  acts   are  of  an  otlicial  character,  or 

As  to  legal 

acte.  require   the   concurrence  of  official   persons,   a   i)rc- 

sumption  arises  in  favor  of  their  due  execution,  for  everything 
is  presumed  to  be  duly  and  rightfully  performed  until  the  con- 
trary is  proved. 

4.  There  are  also   presumptions  of  a   less  conclusive  char- 
acter, and  from  which  the  inference  of  guilt   must   be    more 
or  less  strong,  according  to   circumstances.     These   are,  Ist. 
Presumptions    arising    from   attempts   to   escape   or 
acu"of  Z-    evade  justice.     2d.  Such  as   arise   from   attempts   to 

cused. 

forge  evidence.  3d.  From  threats  or  declarations  of 
the  intention  of  the  parties.  4th.  Presumptions  whicii  arise 
from  possession  of  the  fruits  ot  an  ott'ence.  Parties  who  have 
become  obnoxious  to  any  of  these,  or  kindred  presumi)tions, 
wouM  be  under  circumstances  of  very  strong  suspicion,  and  it 
is  obvious  that  a  smaller  amount  of  proof  would  bo  held  to 
justify  their  conviction  than  would  otherwise  be  required. 

Mr.  Wharton,  whose  excellent  treatise  on  criminal  law  has 
80  frequently  been  quoted  and  relied  upon  in  these  pages,  and 
fi'om  which  the  foregoing  summary  respecting  presumptions 
has  been  made,  lays  down  with  great  precision  and  accuracy 
the  law  on  this  subject,  and  to  that  the  reader  is  now  referred.* 

*  Crim.  Law,  327-342. 


OF    EVIDENCE.  223 

Sec.  361.     Thus  has  been  concluded  a  brief  review  of  such 
of  the  established  principles  and  rules  of  evidence  as 

J      .  ,  •  1  1      •  .  ConclnsioB. 

seemed  important  to  be  considered  in  connection 
with  the  subject  of  military  trials,  and  with  it  terminates  the 
present  undertaking.  Nothing  new  has  been  attempted,  unless 
in  the  mode  of  treating  some  of  the  topics  discussed,  and  the 
general  arrangement  and  style  of  the  work.  What  has  now 
been  accomplished,  chiefly,  as  the  learned  reader  will  perceive, 
by  the  collection  and  readjustment  of  the  labors  of  others,  is 
submitted,  with  its  many  acknowledged  imperfections,  to  the 
indulgent  consideration  of  the  military  profession. 


APPENDIX. 


ARTICLES    01"^    W  A  R  . 

AN    ACT    p-OR    KSTABI,I8HING    RULK.a    AND    ARTICLES    FOR    THE  GOVERN- 
MENT OF  THE  ARMIES  OF  THE  CONFEDERATE  STATES. 

Section  1.  The  Congress  of  the  Confederate  States  of  America  do 
enact.  That,  from  and  after  the  passage  of  this  act,  the  following  sliall  be 
the  rules  and  articles  by  which  the  armies  of  the  Confederate  States  shall 
be  governed : 

Art.  1.  Every  officer  now  in  the  army  of  the  Confeilerate  States  shall, 
in  six  months  from  the  passing  of  this  act,  and  every  officer  who  shall  here- 
after be  appointed,  shall,  before  he  enters  on  the  duties  of  his  office,  sub- 
scribe these  rules  and  regulations. 

Art.  2.  It  is  earnestly  recommended  to  all  officers  and  soldiers  diligently 
to  attend  divine  service;  and  all  officers  who  shall  behave  indecently  or 
irreverently  at  any  place  of  divine  worship  shall,  if  commissioned  officers, 
be  brought  before  a  general  court  martial,  there  to  be  publicly  and 
■everely  reprimanded  by  the  President;  if  non-commissioned  officers  or 
soldiers,  <vfry  person  so  offending  shall,  for  his  first  offence,  forfeit  one- 
sixth  of  a  dollar,  to  be  deducted  out  of  his  next  pay  ;  for  the  second 
offence  he  shall  not  only  forfeit  a  like  sum,  but  be  confined  twenty-four 
hours ;  and  for  every  like  offence,  shall  suffer  and  pay  in  like  manner ; 
which  money,  so  forfeited,  shall  be  applied,  by  the  captain  or  senior  officer 
of  the  troop  or  company,  to  the  ase  of  the  sick  soldiers  of  the  company  or 
troop  to  which  the  offender  l>elongs. 

Art.  .3.  Any  non-commissionetl  officer  or  soMier  who  shall  us<.'  any 
profane  oath  or  execration  shall  incur  the  penalties  expressed  in  the 
foregoing  article  ;  and  a  commissioned  officer  shall  forfeit  and  pay,  for 
each  and  every  such  offence,  one  dollar,  to  Ije  applied  as  in  the  preceding 
article. 

Art.  4.     Kvery  chaplain,  commis-sioned  in   the  army  or  armies  of  the 
Confederate  States,  who  shall  alraent  himself  fnm  the  dtilies  assi(rne<l  him 
(excepting  in  ca^es  of  sicknera  or  leave  of  alwence),  shall,  on  conviction 
16 


22G  junr.E  advocatk's  vade  mkcum. 

thereof  before  a  court  martial,  be  fine<l  not  exceeding  one  raontli's  pay, 
besides  the  loss  of  his  pay  durinj;  his  absenee,  or  be  discharged,  as  the  said 
court  martial  shall  judge  i)ro])er. 

Art.  o.  Any  odicer  or  soldier  who  shall  use  contemptuous  or  disrespect- 
ful words  against  the  President  of  the  Confederate  States,  against  the  Vice- 
President  thereof,  against  the  Congress  of  the  Confederate  States,  or 
against  the  Chief  Magistrate  or  Legislature  of  any  of  the  Confederate 
States  in  which  he  may  be  quartered,  jf  a  commissioned  ofliccr,  shall  be 
cashiered,  or  otherwise  punished,  as  a  court  martial  sliall  direct ;  if  a  non- 
commissioned oliicer  or  soldier,  he  shall  suffer  sucli  punishment  as  shall  be 
inflicted  on  him  by  the  sentence  of  a  court  martial. 

Art.  6.  Any  ofliccr  or  soldier  who  shall  behave  himself  with  contempt 
or  disrespect  toward  his  commanding  officer,  shall  be  punished,  according  to 
the  nature  of  his  ofTence,  by  the  judgment  of  a  court  martial. 

Art.  7.  Any  officer  or  soldier  who  shall  begin,  excite,  cause,  or  join  in 
any  mutiny  or  sedition,  in  any  troop  or  company  in  the  serviee  of  the 
Confederate  States,  or  in  any  party,  post,  detachment,  or  guard,  shall 
suffer  death,  or  such  otlier  punishment  as  by  a  court  martial  shall  be 
inflicted. 

Art.  8.  Any  oflicer,  non-commissioned  officer,  or  soldier,  who,  being 
present  at  any  mutiny  or  sedition,  does  not  use  his  utmost  endeavor  to 
sujjpress  the  same,  or,  coming  to  the  knowledge  of  any  intended  mutiny, 
does  not,  without  delay,  give  information  thereof  to  his  conunanding  oflicer, 
shall  be  punished  by  the  sentence  of  a  court  martial  with  death,  or  other- 
wise, according  to  the  nature  of  his  offence. 

Art.  9.  Any  officer  or  soldier  who  shall  strike  his  superior  officer,  or 
draw  or  lift  up  any  wcajjon,  or  offer  any  violence  against  him,  being  in  the 
execution  of  his  oflice,  on  any  pretence  whatsoever,  or  shall  disobey  any 
lawful  command  of  his  superior  oflicer,  shall  suffer  death,  or  such  other 
punishment  as  shall,  according  to  the  nature  of  his  offence,  be  inflicted 
.  upon  him  by  the  sentence  of  a  court  martial. 

Art.  10.  Every  non-commissioned  officer  or  soldier  who  shall  enlist 
himself  in  the  service  of  the  Confederate  States  shall,  at  the  time  of"  his  so 
enlisting,  or  within  six  days  afterward,  have  the  Articles  for  the  govern- 
ment of  the  armies  of  the  Confederate  States  read  to  him,  and  shall,  by  the 
officer  who  enlisted  him,  or  by  the  commanding  officer  of  the  troop  or 
company  into  which  he  was  enlisted,  be  taken  before  the  next  justice  of 
the  peace,  or  chief  magistrate  of  any  city  or  town  corporate,  not  being 
an  officer  of  the  army,  or  where  recourse  cannot  be  had  to  the  civil  magis- 
trate, before  the  Judge  Advocate,  and  in  his  presence  shall  take  the 
following  oath  or  atiirmation  :  '*  I,  A  B,  do  solemnly  swear,  or  affirm  (as 
the  case  may  be),  that  I  will  bear  true  allegiance  to  the  Confederate  States 
of  America,  and  thiit  I  will  .serve  them  honestly  and  faithfully  against  all 
their  enemies  or  opposers  whatsoever;  and  observe  and  obey  the  orders  of 
the   President    of  the   Confederate   States,  and   the  oiders  of  the   ollicers 


ARTICLES    OF   WAR.  227 

appointed  over  me,  afcording  to  the  Rules  and  Articles  for  the  povern- 
ment  of  the  armies  of  the  Confederate  States."  Which  justice,  magistrate, 
or  Judge  Advocate  is  to  give  to  the  officer  a  certificate,  signiAin*^  that  the 
man  enlisted  did  take  the  said  oath  or  affirmation. 

Akt.  11.  After  a  non-commissioned  officer  or  sohlier  shall  have  been 
duly  enlisted  and  sworn,  he  shall  not  be  dismissed  the  service  without  a 
discharge  in  writing ;  and  no  discharge  granted  to  him  shall  be  sufficient 
winch  is  not  signed  by  a  field  officer  of  the  regiment  to  which  he  belon<fs, 
or  commanding  officer,  where  no  field  ofiicer  of  the  regiment  is  present ; 
and  no  rlischargc  shall  be  given  to  a  non-commissioned  officer  or  soldier 
before  his  term  of  service  has  expired  but  by  order  of  the  President,  the 
Secretary  of  War,  the  commanding  officer  of  a  department,  or  the  sentence 
of  a  general  court  martial ;  nor  shall  a  commissioned  officer  be  discharged 
the  service  but  by  order  of  the  President  of  the  Confederate  States,  or  by 
sentence  of  a  general  court  martial. 

Art.  12.  Every  colonel,  or  other  officer  commanding  a  regiment,  troop, 
or  company,  and  actually  quartered  with  it,  may  give  furloughs  to  non- 
commissioneu  officers  or  soldiers,  in  such  numbers,  and  for  so  long  a  time, 
as  he  shall  judge  to  be  most  consistent  with  the  good  of  the  service  ;  and  a 
captain,  or  other  inferior  officer,  commanding  a  troop  or  company,  or  in 
any  gari-ison.  fort,  or  barrack  of  the  Confederate  States  (his  field  officer 
being  absent),  may  give  furloughs  to  non-commissioned  officers  and  soldiers, 
for  a  time  not  exceeding  twenty  days  in  six  months,  but  not  to  more  than 
two  persons  to  be  absent  at  the  same  time,  excepting  some  extraordinary 
occasion  should  require  it. 

Art.  1.3.  At  every  muster,  the  commanding  officer  of  each  regiment, 
troop,  or  company  there  present,  shall  give  to  tlie  commissary  of  musters, 
or  other  officer  who  musters  the  said  regiment,  troop,  or  company,  certifi- 
cates signed  by  himself,  signifying  how  long  such  officers  as  shall  not  ap- 
pear at  the  said  muster,  have  been  absent,  and  the  reason  of  their  absence. 
In  like  manner,  the  commanding  officer  of  every  troop  or  companv  shall 
give  certificates,  signifying  the  reasons  of  the  absence  of'  the  non-conunis- 
sioncd  officers  and  private  soldiers;  which  reasons  and  time  of  absence 
shall  be  inserted  in  the  muster-rolls,  oj)posit«  the  names  of  the  respective 
absent  officers  and  soldiers.  The  certificates  shall,  together  with  the  mus- 
ter-rolls, be  remitted  by  the  commissary  of  musters,  or  otber  officer  muster- 
ing, to  the  Department  of  War,  as  sjieedily  as  the  distance  of  the  jilace  will 
admit. 

Art.  14.  Every  officer  who  shall  Ik-  convicted  before  a  general  court 
martial  of  having  signeil  a  false  certifi<  atx-  n-lating  to  the  absence  of  either 
officer  or  private  soldier,  or  relative  to  his  or  th«ir  pay,  shall  Ik-  cashiered. 

Art.  15.  Kverj-  officer  who  •hall  knowingly  make  a  faluc  muster  of 
man  or  horse,  and  every  officer  or  commissary  of  musters  who  shall  will- 
ingly  sign,  direct,  or  allow  the  signing  of  musU-r-rolls  wherein  surh  false 
muster  is  contained,  shall,  upon  proof  made  thereof,  by  two  witnesses,  be- 


228  Jl'l>r.K    AliVOiATr-'s    VADE    MKCUM. 

fore  a  pencral  court  martial,  Ik*  oasliien'd,  ami  sliall  ih'  thereby  utterly  ilis- 
.ililed  to  have  or  hold  any  office  or  employment  in  the  service  of  the  Con- 
federate State* 

Art.  16.  Any  commissary  of  musters,  or  other  officer,  wIjo  shall  be  eon- 
victe<l  of  havinj;  taken  money,  or  other  thing,  by  way  of  jTratifiealion,  on 
musteriiifr  any  regiment,  tr(X)|).  or  eomj)any,  or  on  signing  muster-niiis,  shall 
be  displaced  from  his  office,  and  shall  In-  thereby  utterly  disabletl  to  have  or 
hold  any  oflice  or  employnn-nt  in  the  service  of  the  Confederate  States. 

Art.  17.  Any  officer  who  shall  presume  to  mustvr  a  persou  as  a  soldier 
who  is  not  a  soldier,  shall  be  deemed  guilty  of  having  made  a  false  muster, 
and  shall  sufler  accordingly. 

Akt.  1H.  Every  olfuer  who  shall  knowingly  make  a  false  return  to  the 
Department  of  War,  or  to  any  of  his  superior  oOicers,  authorized  to  call  lor 
such  returns,  of  the  state  of  the  regiment,  troop,  or  company,  or  garrison, 
under  his  command ;  or  of  the  arms,  ammunition,  clothing,  or  other  stores 
thereunto  belonging,  shall  oh  conviction  thereof  before  a  court  martial,  be 
cashiered. 

Art.  19.  Die  commanding  officer  of  every  regiment,  troop,  or  imle- 
pendent  company,  or  garrison  of  the  Confederate  States,  shall  in  the 
beginning  of  every  month  remit,  through  the  proper  channels,  to  the  De- 
])artment  of  War,  an  e.xact  return  of  the  regiment,  troop,  independent 
company,  or  garrison  under  his  command,  specifying  the  names  of  the  offi- 
cers then  absent  from  their  posts,  with  the  reasons  for  and  the  time  of  their 
absence.  And  any  olHcer  wiio  sliall  be  convicted  of  having,  through  neglect 
or  design,  omitted  sending  such  returns,  shall  be  punislicfl,  according  to  tlie 
nature  of  his  crime,  by  the  judgment  of  a  general  court  martial. 

Art.  20.  All  officers  and  soldiers  who  have  received  pay,  or  have  been 
duly  enlisted  in  the  service  of  the  Confederate  States,  and  shall  be  con- 
victed of  having  deserted  the  same,  shall  suffer  death,  or  such  other  punish- 
ment as  by  sentence  of  a  court  maitial  sliall  be  inllicted. 

Art.  21.  .Vny  non-connuissioned  officer  or  .-soldier  who  shall,  without 
leave  from  his  connnanding  olliccr,  absent  himself  from  his  troop,  company, 
or  <letachment,  shall,  upon  being  convicted  thereof,  be  punished  according 
to  the  nature  of  his  oflence,  at  the  discretion  of  a  court  martial. 

Art.  22.  No  non-conunissioued  officer  or  soldier  .shall  enlist  himself  in 
any  other  regiment,  troop,  or  comjjany,  without  a  regular  di.scharge  from 
the  regiment,  tnwip,  or  conij)any  in  which  lie  last  .served,  on  the  penalty  of 
being  reputed  a  deserter,  and  sullering  accordingly.  And  in  case  any 
officer  shall  knowingly  receive  and  entertain  such  uon-eommissioned  officer 
or  soldier,  or  shall  not,  after  his  being  discovered  to  be  a  deserter,  imme- 
diately confine  him,  and  give  notice  thereof  to  the  corps  in  which  he  last 
servetl,  the  said  olliccr  shall,  by  a  court  martial,  be  ca.shiercil. 

Art.  23.  Any  olliccr  or  soldier  who  shall  be  convicted  of  having  ad- 
vised or  persuaded  any  other  officer  or  soldier  to  desert  the  service  of  the 


ARTICLKS    OF    WAR.  229 

Confederate  States,  shall  suffer  death,  or  such  other  punishment  as  shall  be 
inflicted  upon  him  by  the  sentence  of  a  court  martial. 

ArtT.  24.  No  ofllcer  or  snldicr  shall  use  any  reproachful  or  provoking 
speeches  or  <rcstures  to  another,  upon  pain,  if  an  officer,  of  bcinnr  put  in 
arrest;  if  a  solilier,  confined,  and  of  askinji  pardon  of  the  party  otb-ndcd, 
in  the  presence  of  his  commanding  officer. 

Akt.  'i5.  No  officer  or  soldier  shall  send  a  challenge  to  another  officer 
or  soldier,  to  fight  a  duel,  or  accept  a  challenge  if  sent,  upon  pain,  if  a  com- 
missioned officer,  of  being  cashiered ;  if  a  non-commissioned  officer  or  sol- 
dier, of  snfTcring  corporal  punishmenf.  at  the  discretion  of  a  court  martial. 

Art.  20.  If  any  conin\issioncd  or  non-commiscioned  officer  commanding 
a  guard  shall  knowingly  or  willingly  suffer  any  person  whatsoever  to  go 
forth  to  fight  a  duel,  he  shall  be  punished  as  a  challenger ;  and  all  seconds, 
promoters,  and  carriers  of  challenges,  in  order  to  duels,  shall  be  deemed 
principals,  and  be  punished  acconlingly.  And  it  shall  be  the  duty  of  every 
officer  commanding  an  army,  regiment,  company,  post,  or  detachment,  who 
is  knowing  to  a  challenge  being  given  or  accejited  by  any  officer,  non- 
commissioned officer,  or  soldier,  under  his  command,  or  has  reason  to  believe 
the  same  to  be  the  case,  immediately  to  arrest  and  bring  to  trial  such 
oflTenders. 

Art.  2".  All  officers,  of  what  condition  soever,  have  power  to  part  and 
quell  all  quarrels,  frays,  and  disorders,  though  the  persons  concerm'fl  should 
belong  to  another  regiment,  troop,  or  company:  and  either  to  order  officers 
into  arrest,  or  non-commissioned  officers  or  soldiers  into  confinement,  until 
th<'ir  proper  superior  officers  shall  be  acquainted  therewith ;  and  whosoever 
shall  refuse  to  obey  such  officer  (though  of  an  inferior  rank),  or  shall  draw 
his  sword  upon  him,  shall  be  punished  at  the  discretion  of  a  general  court 
martial. 

Art.  28.  Any  officer  or  soldier  who  shall  upbraid  another  for  refusing  a 
challenge,  shall  himself  be  punished  as  a  challenger ;  and  all  officers  and 
soldiers  are  hereby  discharge<l  from  any  disgrace  or  opinion  of  disadvantage 
which  might  arise  from  their  having  refused  to  accept  of  challenges,  as  they 
will  only  have  acted  in  obclience  to  the  laws,  and  done  their  duty  as  good 
»oldi<TS  who  subject  thems<dves  to  discipline. 

Art.  29.  No  sutler  shall  be  permitted  to  sell  any  kind  of  liquors  or 
virttials,  or  to  keep  their  bouses  or  shops  open  for  tiie  entertainment  of  sol- 
diers, after  nine  at  night,  or  before  the  beating  of  the  reveille,  or  upon  Sun- 
days, during  divine  service  or  sermon,  on  the  penalty  of  being  dismissed 
from  all  future  suttling. 

Art.  30.  All  officers  commanding  in  the  field,  forts,  barra<  ks,  or  garri- 
toas  of  the  Confederate  States,  are  hereby  rxyjuired  to  see  that  the  persons 
permitted  to  suttle  shall  supply  the  soldiers  with  good  and  wholesome  pro- 
visions, or  ofh<^r  arti<  Ic*.  at  a  reasonable  price,  as  they  shall  be  answerable 
for  their  neglect,. 

Art.  ^\.     No  offi  er  commanding  in  any  of  the  garrisons,  fort*,  or  bar- 


230  JUDOK    AnVOCATl/s    VAliK    MKriM. 

rat'ks  of  the  Confederate  States,  shall  exact  exorbitant  prices  for  houses  or 
stalls,  let  out  to  sutlers,  or  conuiv*'  at  tlii'  like  exactions  in  others;  nor  l>y 
his  own  authority,  and  for  his  j)rivate  advanfajre,  lay  any  duty  or  imposition 
upon,  or  be  interested  in  the  sale  of  any  victuals,  liquors,  or  other  neces- 
saries of  life  broujrht  into  the  parrison,  fort  or  barracks,  for  the  use  of  the 
soldiers,  on  the  penalty  of  beinjr  discharfjed  from  the  service. 

Akt.  32.  Every  otlicer  coininandiufr  in  (piarters,  irarrisons.  or  on  the 
march,  sliall  keep  good  order,  and  to  tiie  utmost  of  his  power  redress  all 
abuses  or  disorders  which  may  be  committed  by  any  ollicer  or  soldier  under 
his  command ;  if,  upon  complaint  made  to  him  of  officers  or  soldiers  beating 
or  otherwise  ill-treatin":  any  person,  or  disturbing  fairs  or  markets,  or  of 
committing  any  kind  of  riots,  to  the  discpiieting  of  the  citizens  of  the  Con- 
federate States,  he,  the  said  commander,  who  shall  refuse  or  omit  to  see* 
justice  done  to  the  oil'entler  or  ofU-nders,  and  reparation  made  to  the  party 
or  parties  injured,  as  far  as  part  of  tin*  offenclcr's  pay  shall  enable  him  or 
them,  shall,  upon  proof  thereof,  be  cashiered,  or  otherwise  punisheil,  as  a 
general  court  martial  shall  tlirect. 

Art.  33.  When  any  commissioned  oflicer  or  soldier  shall  be  accused  ot"  a 
capital  crime,  or  of  having  used  violence,  or  committed  any  offence  against 
the  person  or  property  of  any  citizen  of  any  of  the  Confe(K>rate  States, 
such  as  is  j)unishable  by  the  known  laws  of  the  land,  the  commanding 
oflicer  and  officers  of  every  regiment,  troop,  or  company  to  which  the  per- 
son or  persons  so  accused  shall  belong  are  hereby  required,  ujion  api>lica- 
tion  duly  made  by,  or  in  behalf  of  the  party  or  parties  injured,  to  use  tiu-ir 
utmost  endeavors  to  deliver  over  such  accused  i)erson  or  persons  to  the  civil 
magistrate,  and  likewise  to  be  aiiling  and  assisting  to  the  oflicci-s  of  justice 
in  ajiprchending  and  securing  the  j)erson  or  persons  so  accused,  in  order  to 
bring  him  or  them  to  trial.  If  any  commanding  officer  or  officers  shall  wil- 
fully neglect,  or  shall  refuse,  upon  the  application  aforesaid,  to  deliver  over 
such  accused  person  or  persons  to  the  civil  magistrates,  or  to  be  aiding  and 
assisting  to  the  officers  of  justice  in  a])])reheiidii)g  such  peison  or  persons, 
the  oflicer  or  officers  so  offending  shall  be  cashiered. 

Akt.  34.  If  any  officer  shall  think  himself  wronged  by  his  colonel,  or  the 
commanding  officer  of  the  regiment,  and  shall,  upon  due  appfication  being 
made  to  him  be  refu-sed  redress,  he  may  complain  to  the  general  commaml- 
ing  in  the  stat»'  or  territory  where  such  regiment  shall  be  stationed,  in 
order  to  obtain  justice;  who  is  hereby  rc(iuirt'd  to  examine  into  said  com- 
plaint, anil  take  projjcr  measures  for  reilressing  the  wrong  complained  of, 
and  transmit,  as  .soon  as  possible,  to  the  Department  of  War.  a  true  state  of 
such  complaint,  with  the  jiroceedings  had  thereon. 

Art.  35.  If  any  inferior  officer  or  solilicr  shall  think  himself  wronged 
by  his  captain  or  other  officer,  he  is  to  complain  thereof  to  the  commanding 
officer  of  the  regiment,  who  is  hereby  recpiired  to  summon  a  regimental 
court  martial,  for  the  doing  justice  to  the  conqilainant ;  from  which  regi- 
mental court  martial  cither  party  may,  if  he   think  himself  still  aggrieved. 


ARTICLKS    OF    WAR. 


2ni 


appeal  to  a  genoral  court  martial.  But  if,  upon  a  second  hearing,  the 
appeal  sliall  apjx-ar  vexatious  and  jrroundless,  the  person  so  appealing  shall 
be  punished  at  the  discretion  of  said  court  martial. 

Art.  36.  Any  commissioned  officer,  store-keeper,  or  commissary,  who 
shall  be  convicted  at  a  general  court  martial  of  having  sold,  without  a 
proper  order  for  that  purpose,  embezzled,  misapplied,  or  wilfully,  or 
through  neglect,  suffered  any  of  the  provisions,  forage,  arms,  clothing,  am- 
munition, or  other  military  stores  belonging  to  the  Confederate  States  to  lie 
spoiled  or  damaged,  shall,  at  his  own  expense,  make  good  the  loss  or  dam- 
age, and  shall,  moreover,  forfeit  all  his  pay,  and  be  dism-ssed  from  the 
service. 

Art.  87.  Any  non-commissioned  officer  or  soldier  who  shall  be  con- 
victed at  a  regimental  court  martial  of  having  sold,  or  designedly  or  through 
neglect  wasted  the  ammunition  delivered  out  to  him,  to  be  employed  in  the 
service  of  the  Confederate  States,  shall  be  punished  at  the  discretion  of 
such  court. 

Art.  38.  Every  non-commissioned  officer  or  soldier  who  shall  be  con- 
victed before  a  court  martial  of  having  sold,  lost,  or  spoiled,  through  neg- 
lect, his  horse,  arms,  clothes,  or  accoiitrements,  shall  imdergo  such  weekly 
stoppages  (not  exceeding  the  half  of  his  pay)  as  such  court  martial  shall 
judge  sufficient  for  repairing  the  loss  or  damage;  and  shall  suffer  confine- 
ment, or  such  other  corporal  punishment  as  his  crime  shall  deserve. 

Art.  39.  Every  officer  who  shall  be  convicted  before  a  court  martial  of 
having  embezzled  or  misapplied  any  money  with  which  he  may  have  been 
intrusted,  for  the  payment  of  the  men  under  his  command,  or  for  enlisting 
men  into  the  service,  or  for  other  purposes,  if  a  commissioned  officer,  shall 
be  cashiered,  and  compelled  to  refund  the  money;  if  a  non-commissioned 
officer,  shall  be  reduced  to  the  ranks,  be  put  under  stoppages  until  the 
money  be  made  good,  and  suffer  such  corporal  punishment  as  such  coiirt 
martial  shall  direct. 

Art.  40.  Every  captain  of  a  troop  or  company  is  charged  with  the 
arms,  accoutrements,  ammunition,  clotliing,  or  other  warlike  st/ores  belong- 
ing to  the  troop  or  company  under  his  command,  which  he  is  to  be  accoimt- 
able  for  to  his  colonel  in  ca.se  of  their  being  lost,  spoiled,  or  damaged,  not 
by  unavoidable  a<'cidents.  or  on  actual  service. 

Art.  41.  All  non-commissioned  offi'-ers  and  soldiers  who  shall  be  found 
one  mile  from  the  camp  without  leave,  in  writing,  from  their  commanding 
officer,  shall  suffer  sueh  punishment  as  shall  be  inflicted  upon  them  bj-  the 
sentence  of  a  court  martial. 

Art.  42.  No  officer  or  ••oldier  shall  lie  out  of  his  quarters,  garriwn,  or 
camp  without  leave  from  his  nuperior  officer,  upon  penalty  of  being  pun- 
ished af<'or<ling  to  the  nattirc  of  his  offence,  by  the  sentence  of  a  cotirt 
martial. 

Art.  43.     Everv  non-'^ommisiioned  olliccr  and  iioMicr  «hall  retire  to  his 


232  JUDOE    AnVOCATF-'s    VAPK    MF.CrM. 

quarters  or  tont»at  tlio  lu'ating  of  the  retreat ;  in  default  of  wliich  lie  shall 
be  punished  acoonling  to  the  nature  of  his  ofTenee. 

Art.  44.  No  oflieer,  non-<'ommissioncd  ofTieer,  or  soldier  .shall  fail  in 
repairing,  at  the  time  fixed,  to  the  place  of  parade,  of  exercise,  or  other 
rendezvous  appointed  by  his  commanding  oflieer,  if  not  prevented  by  sick- 
ness or  some  other  evident  necessity,  or  shall  go  from  the  said  place  of  ren- 
dezvous without  leave  from  his  commanding  oflieer,  before  he  shall  be 
regularly  dismissed  or  reliered,  on  the  penalty  of  being  punished,  .according 
to  the  nature  of  his  offence,  by  the  sentence  of  a  court  martial. 

Art.  4.5.  Any  commissioned  officer  who  shall  be  found  drunk  on  his 
guard,  party,  or  other  duty,  shall  be  cashiered.  Any  non-couunissioned 
officer  or  soldier  so  offending  shall  suffer  such  corporal  punishment  as  shall 
be  inflicted  by  the  sentence  of  a  court  martial. 

Art.  46.  Any  sentinel  who  shall  be  found  sleeping  upon  his  post,  or 
shall  leave  it  before  he  shall  be  regularly  relieved,  shall  suffer  death,  or 
such  other  punishment  as  shall  be  inflicted  by  the  sentence  of  a  court 
martial. 

Art.  47.  No  soldier  belonging  to  any  regiment,  troop,  or  conipany, 
shall  hire  another  to  do  his  duty  for  him,  or  be  excused  from  duty  but  in 
cases  of  sickness,  disability,  or  leave  of  absence;  and  every  such  soldier 
found  guilty  of  hiring  his  duty,  as  also  the  party  so  hired  to  do  another's 
duty,  shall  be  punished  at  the  discretion  of  a  regimental  court  martial. 

Art.  48.  And  every  non-commissioned  oflieer  conniving  at  such  hiring 
of  duty  aforesaid  shall  be  reduced;  and  every  commissioned  oflieer  knowing 
and  allowing  such  ill  practices  in  the  service,  shall  be  punished  by  the 
judgment  of  a  general  court  martial. 

Art.  49.  Any  oflic^er  belonging  to  the  service  of  the  Confederate 
States,  who,  by  discharging  of  fire-arms,  drawing  of  swords,  beating  of 
drums,  or  by  any  other  means  whatsoever,  shall  occasion  false  alarms  in 
camp,  garrison,  or  (piarters,  shall  sufler  death,  or  such  other  puiiishineiit  as 
shall  be  ordered  by  the  sentence  of  a  general  court  martial. 

Art  50.  Any  officer  or  soldier  who  shall,  without  urgent  necessity,  or 
without  the  leave  of  his  superior  officer,  quit  his  guard,  platoon,  or  division, 
shall  be  punished,  according  to  the  nature  of  his  offence,  by  the  sentence  of 
a  court  martial. 

Art.  51.  No  oflieer  or  soldier  shall  do  violence  to  any  person  who 
brings  provisions  or  other  necessaries  to  tlie  camji,  gai'rison,  or  (jiiarters  of 
the  forces  of  the  Confederate  States,  employed  in  any  parts  out  of  the  said 
states,  upon  pain  of  death,  or  such  other  jninishment  as  a  court  martial 
shall  direct. 

Art.  52.  Any  oflii-er  or  soldier  who  shall  misbehave  himself  before  the 
enemy,  run  away,  or  shamefully  aban<l(ni  any  fort,  post,  or  guard  which  he 
or  they  may  be  commaiuled  to  defeml,  or  sjx-ak  words  inducing  others  to  do 
the  like,  or  .shall  cast  away  his  arms  and  ammunition,  or  who  shall  (jiiit  his 
post  or  colors  to  plumler  and   pillage,   every   such   offender,  being  duly 


ARTICLES    OF    WAR.  2ZZ 

convicted  thereof,  shall  suffer  death,  or  such  other  punishment  as  shall  be 
ordered  by  the  sentence  of  a  general  court  martial. 

AtiT.  .').'].  Any  person  belonging  to  the  armies  of  the  Confederate  States 
who  shall  make  known  the  watchword  to  any  person  who  is  not  entitled  to 
receive  it  according  to  the  rules  and  discipline  of  war,  or  shall  presume  to 
give  a  parole  or  watchword  different  from  what  he  received,  shall  suffer 
death,  or  such  other  punishment  as  shall  be  ordered  by  the  sentence  of  a 
general  court  martial. 

Art.  .')4.  All  officers  and  soldiers  are  to  behave  themselves  orderly  in 
quarters  and  on  their  march  ;  and  whoever  shall  commit  any  waste  or 
spoil,  either  in  walks  or  trees,  parks,  warrens,  fish-ponds,  houses,  or  gardens, 
cornfields,  enclosures  of  meadows,  or  shall  maliciously  destroy  any  property 
whatsoever  belonging  to  the  inhabitants  of  the  Confederate  States,  unless 
by  order  of  the  then  commander-in-chief  of  the  armies  of  the  said  states, 
shall  (besides  such  penalties  as  they  are  liaV)le  to  by  law),  be  punished 
according  to  the  nature  and  degree  of  the  offence,  by  the  judgment  of  a 
regimental  or  general  court  martial. 

Art.  5.5.  Whosoever,  belonging  to  the  armies  of  the  Confederate  States 
in  foreign  parts,  shall  force  a  .safeguard,  shall  suffer  death. 

Art.  .56.  Whosoever  .shall  relieve  the  enemy  with  money,  victuals,  or 
ammunition,  or  shall  knowingly  harbor  or  protect  an  enemy,  shall  suffer 
death,  or  such  other  punishment  as  shall  be  ordered  by  the  sentence  of  a 
court  martial 

Art.  .57.  Whosoever  shall  be  convicted  of  holding  correspondence  with, 
or  giving  intelligence  to  the  enemy,  either  directly  or  indirectly,  shall 
siiffi-r  death,  or  su'h  other  punishment  as  shall  be  ordered  by  the  sentence 
of  a  court  martial. 

Art.  .58.  All  public  stores  taken  in  the  enemy's  camp,  towns,  forts,  or 
magazines,  whether  of  artillery,  ammunition,  clothing,  forage,  or  provisions, 
shall  V)e  secured  for  the  service  of  the  Confederate  States ;  for  the  neglect 
of  which  the  commandina  officer  is  to  be  answerable. 

Art.  .5ft.  If  any  commander  of  any  garrison,  fortress,  or  jio^t,  shall  l>e 
compclh'fl.  by  the  officers  and  soldiers  under  his  command,  to  give  u]i  to  the 
enemy,  or  to  abandon  it,  the  commissioned  officers,  non-commissioned 
officers,  or  soldiers  who  shall  be  convicted  of  having  so  offended,  shall  suffer 
death,  or  such  other  punishment  as  shall  be  inflicted  upon  them  by  the 
sentence  of  a  court  martial. 

Art.  60.  All  sutlers  and  retainers  to  the  camp,  and  all  persons  whatso- 
ever, siT^ing  with  the  armies  of  the  Confederate^  States  in  the  fifld.  though 
not  enlist<«d  soKliers,  are  to  be  subject  to  onlers,  according  to  the  rules  and 
dis<ipline  of  war. 

Art.  61.  Officers  having  brevets  or  commissions  of  a  prior  date  to  those 
of  the  corf»s  in  which  they  serve,  will  takf  pla4-e  on  court*  martial  or 
of  in<juiry,  and  on  boanls  detailed  for  military  purposes,  when  cf»mi>o»ed  of 
different  corps,  according  to  the  ranks  given  them  in  their  breveta  or 


234  JUDGE  advocate's  vade  mecum. 

former  commission?  :  b\it  in  the  rejrimcnt,  corps,  or  company  to  which  such 
oflicers  Ijclon^r,  they  shall  do  duly  and  take  rank,  both  in  courts  and  on 
boards  as  aforesaid,  Vhich  shall  be  composed  of  their  own  corps,  iU'cordinu 
to  the  commissions  by  which  they  are  there  mustereil. 

Art.  G2.  If,  upon  marches,  guards,  or  in  quarters,  different  corps  shall 
happen  to  join,  or  do  duty  together,  the  officer  liipliest  in  rank,  according 
to  the  commission  by  whidi  he  is  mustered,  in  the  army,  navy,  marine 
corps,  or  militia,  there  on  duty  by  orders  from  competent  authority,  shall 
command  the  whole,  and  give  orders  for  what  is  needful  for  the  service, 
unless  otherwise  directed  by  the  President  of  the  Confederate  States,  in 
orders  of  special  assignment  providing  for  the  case. 

Art.  63.  The  functions  of  the  engineers  being  generally  confined  to 
the  most  elevated  branch  of  military  science,  they  are  not  to  assume,  nor 
are  they  subject  to  be  ordered  on  any  duty  beyon<l  the  line  of  their  imme- 
diate profession,  except  by  the  special  order  of  the  President  of  the  Confed- 
erate States ;  but  they  are  to  receive  every  mark  of  respect  to  wiiich  their 
rank  in  the  army  may  entitle  them  respectively,  and  are  liable  to  be  trans- 
ferred, at  the  discretion  of  the  President,  from  one  corps  to  another,  regard 
being  paid  to  rank. 

Art.  fi4.  General  courts  martial  may  consist  of  any  nunil)cr  of  couv- 
niissioned  oflicers  from  five  to  thirteen,  inclusively;  but  they  shall  not 
consist  of  less  than  thirteen,  where  that  number  can  be  convened  without 
manifest  injury  to  the  .service. 

Art.  65.  Any  general  officer  commanding  an  army,  or  colonel  com- 
manding a  sejjarate  department,  may  appoint  general  courts  martial  when- 
ever necessary.  But  no  sentence  of  a  court  martial  shall  be  carried  into 
execution  until  after  the  whole  proceedings  shall  have  been  laid  before  the 
officer  ordering  the  same,  or  the  officer  commanding  the  troops  for  the 
time  being ;  neither  shall  any  sentence  of  a  general  court  martial,  in  the 
time  of  peace,  extending  to  the  loss  of  life,  or  the  dismission  of  a  commis- 
sioned officer,  or  which  shall,  either  in  time  of  peace  or  war,  respect  a 
general  oflicer,  be  carried  into  execution,  until  after  the  whole  proceedings 
shall  have  been  transmittecl  to  the  Secretary  of  War,  to  be  laid  before  the 
President  of  the  Confederate  States  for  his  confirmation  or  disapproval  and 
orders  in  the  ca.se.  All  other  sentences  may  be  confirmed  and  executed  by 
the  officer  ordering  the  court  to  assemble,  or  the  commanding  offii-er  for  the 
time  being,  as  the  case  may  be. 

Art.  (Jfi.  Every  officer  commanding  a  regiment  or  corps  may  appoint, 
for  his  own  regiment  or  corps,  courts  martial,  to  consi.st  of  three  commis- 
sioned officers,  for  the  trial  and  punishment  of  offences  not  ca])ital,  and 
decide  upon  their  sentences.  For  the  same  purpose,  all  officers  command- 
ing any  of  the  garrisons,  forts,  barracks,  or  other  places  where  the  troops 
consist  of  different  corps,  may  assemble  coui-ts  martial,  to  consist  of  three 
commissioned  officers?,  and  decide  upon  tlieir  sentences. 

Art.  (5  7.      No  garrison  or  regimental  court  martial  shall  have  the  power 


ARTICLES    OF    WAR. 


:35 


to  try  capital  cases  or  commissioned  officers  ;  ncitlier  shall  they  inflict  a 
fine  exceedinji  one  month's  pay,  nor  imprison,  nor  put  to  hard  labor  any 
non-commissioned  officer  or  soldier  for  a  longer  time  than  one  month. 

Art.  68.  Whenever  it  may  be  found  convenient  and  necessary  to  the 
public  service,  the  officers  of  the  marines  shall  be  associateil  with  the 
officers  of  the  land  forces  for  the  purpose  of  holding  courts  martial  and 
trying  offenders  belonging  to  either;  and  in  such  cases  the  orders  of  the 
senior  oilicer  of  either  corps  who  may  be  present  and  duly  authonzed, 
shall  be  received  and  cbeyed. 

Art.  69.  The  Judge  Advocate,  or  some  person  deputed  by  him,  or  by 
the  general,  or  officer  commandjng  the  army,  detachment,  or  garrison,  shall 
prosecute  in  the  name  of  the  Confederate  States,  but  shall  so  far  consider 
himself  as  counsel  for  the  prisoner,  after  the  said  prisoner  shall  have  made 
his  plea,  as  to  object  to  any  leading  question  to  any  of  the  witnesses,  or  any 
question  to  the  prisoner,  the  answer  to  which  might  tend  to  criminate  him- 
self, aud  administer  to  each  member  of  the  court,  before  they  proceed  upon 
any  trial,  the  following  oath,  whi,-h  shall  also  be  taken  by  all  members  of 
the  regimental  and  garrison  courts  martial. 

"  You,  A  B,  do  swear  that  you  will  well  and  truly  try  and  determine, 
according  to  evidence,  the  matter  now  before  you,  between  the  Confeder- 
ate States  of  America  and  the  prisoner  to  be  tried,  and  that  you  will  duly 
administer  justice,  according  to  the  provisions  of  'An  act  establishing  Rules 
and  Articles  for  the  government  of  the  armies  of  the  Confederate  States,' 
without  partiality,  favor,  or  afTection ;  and  if  any  doubt  should  arise,  not 
explained  by  said  Articles,  according  to  your  conscience,  the  best  of  your 
understanding,  and  the  custom  of  war  in  like  cases;  and  you  do  further 
swear  that  you  will  not  divulge  the  sentence  of  the  court  until  it  shall  be 
published  by  the  proper  authority ;  neither  will  you  discdose  or  discover  the 
vote  or  opinion  of  any  particular  miimber  of  the  court  martial,  unless 
required  to  give  evidence  thereof,  as  a  witness,  by  a  court  of  justice,  in  a 
due  course  of  law.     So  help  you  (rod." 

And  so  soon  a.s  the  sairl  oath  shall  have  been  administered  to  the  re- 
spective members,  the  president  of  the  court  shall  administer  to  the  Judge 
Advocate,  or  person  officiating  as  such,  an  oath  in  the  following  wonls : 

*'  You,  A  B,  do  swear  that  you  will  not  disclose  or  discover  the  vote  or 
opinion  of  any  particular  member  of  the  court  martial,  unless  required  to 
give  evidence  thereof,  as  a  witness,  by  a  court  of  justii-e.  in  due  course  of 
law:  nor  divulge  the  sentence  of  the  court  to  any  Init  the  proper  authority, 
until  it  shall  be  duly  disclosed  by  the  same.     So  help  you  Go<l." 

Art.  "0.  When  a  prisoner,  arraigned  before  a  general  court  martial, 
shall  from  obstinacy  and  deliberate  design  stand  mute,  or  answer  foreign 
to  the  purpose,  the  court  may  proceed  to  trial  and  judgment  as  if  the  pris- 
oner had  regularly  pleaded  not  guilty. 

Art.  71.  When  a  member  shall  l>e  challenged  by  a  prif^nor.  he  most 
state  his  cause  of  challenge,  of  which  the  court  shall,  after  due  deliberation. 


236  junoF.  advocate's  vade  mecum. 

determine  the  relevancy  or  validity,  and  decide  accordingly ;  and  no  clial- 
lenpe  to  more  than  one  member  at  a  time  shall  be  received  by  the  court. 

Akt.  72.  All  the  members  of  a  court  martial  are  to  behave  with  de- 
cency and  calmness;  and  in  pivinir  tlu'ir  votes  are  to  bejjin  with  the 
younjrest  in  commission. 

Art.  73.  All  persons  who  plve  evidence  before  a  court  martial  are 
to  be  examined  on  oath  or  affirmation,  in  the  following  form : 

"  You  swear,  or  affirm,  (as  the  case  may  be),  the  evidence  you  shall  give 
in  the  cause  now  in  hearins  shall  be  the  truth,  the  whole  truth,  and  nothing 
but  the  truth.     So  help  you  God." 

AuT.  74.  On  the  trials  of  oases  not  capital,  before  courts  martial,  the 
deposition  of  witnesses,  not  in  the  line  or  slalf  of  the  army,  may  be  taken 
before  some  justice  of  the  peace,  and  read  in  evidence  :  provided  the  prose- 
cutor and  person  accused  are  present  at  the  taking  the  same,  or  are  duly 
notified  thereof. 

Art.  7.5.  No  officer  shall  be  tried  but  by  a  general  court  martial,  nor  by 
officers  of  an  inferior  rank,  if  it  can  be  avoided.  Nor  shall  any  proceeilings 
of  trials  be  carried  on,  excepting  between  the  hours  of  eight  in  the  morn- 
ing and  three  in  the  afternoon ;  excepting  in  cases  which,  in  the  opinion  of 
the  officer  ap|)ointing  the  court  martial,  require  immediate  example. 

Art.  76.  No  person  whatsoever  shall  use  any  menacing  words,  signs,  or 
gestures,  in  presence  of  a  court  martial,  or  shall  cause  any  disorder  or  riot, 
or  disturb  their  proceedings,  on  the  penalty  of  being  punished  at  tlie  dis- 
cretion of  the  said  court  martial. 

Art.  77.  Whenever  any  officer  shall  be  charged  with  a  crime,  he  .shall 
be  arrested  and  confined  in  his  barracks,  quarters,  or  tent,  and  deprived  of 
his  sword  by  the  commanding  officer.  And  any  officer  who  shall  leave  his 
confiiienient  before  he  shall  be  set  at  liberty  by  the  commanding  officer,  or 
by  a  superior  officer,  shall  be  cashiered. 

Art.  78.  Non-commissioned  officers  and  soldiers,  charged  with  crimes, 
shall  be  confined  until  tried  by  a  court  martial,  or  released  by  proper 
authority. 

Art.  79.  No  ollicer  or  soldier  who  shall  be  put  in  arrest  shall  continue 
in  confinement  more  than  eight  days,  or  until  such  time  as  a  court  martial 
can  be  assembled. 

Art.  80.  No  officer  commanding  a  guard,  or  provost  marshal,  shall  re- 
fuse to  receive  or  keep  any  prisoner  committt'd  to  his  charge  by  an  officer 
belonging  to  the  forces  of  the  Confederate  States;  provided  the  officer  com- 
mitting shall,  at  the  same  time,  deliver  an  account  in  writing,  signed  by 
himself,  of  the  crime  of  which  the  said  prisoner  is  charged. 

Art  81.  No  officer  connnanding  a  guard,  or  provost  marshal,  sliall  pre- 
sume to  release  any  person  committed  to  his  charge  without  proper  au- 
thority for  so  doing,  nor  shall  he  suflfer  any  person  to  escape,  on  the  ])enalty 
of  being  punished  for  it  by  the  sentence  of  a  court  martial. 

Art.  82.     Every  officer  or  provost  nrirshal,  to  whose  charge  prisoners 


ARTICLES    OF    WAR.  237 

shall  bo  foniniittod,  shall  within  twcnty-fuiir  hours  after  such  conunitnicut, 
or  as  soon  as  he  siiall  be  relieved  from  his  guard,  make  report  in  writing  to 
the  commanding  oflieer  of  their  names,  their  crimes,  and  the  names  of  the 
officers  who  committed  them,  on  the  penalty  of  being  punished  for  disobe- 
dience or  neglect,  at  the  discretion  of  a  court  martial. 

Airr.  83.  Any  commissioned  officer  convicted  before  a  general  court 
martial  of  conduct  unbecoming  an  officer  and  a  gentleman,  shall  be  dis- 
missed the  service. 

AuT.  84.  In  cases  where  a  court  martial  may  think  it  proj)er  to  sen- 
tence a  commissioned  officer  to  be  suspended  from  command,  they  shall 
have  power  also  to  suspend  his  pay  and  emoluments  for  the  same  time, 
according  to  the  nature  and  heinousness  of  the  offence. 

Akt.  85.  In  all  cases  where  a  commissioned  officer  is  cashiered  for 
cowardice  or  fraud,  it  shall  be  added  in  the  sentence,  that  the  crime,  name, 
and  place  of  abode,  and  punishment  of  the  deiincjuent,  be  published  in  the 
newspaper.s  in  and  about  the  camp,  and  of  the  particular  state  from  which 
the  oflender  came,  or  where  he  usually  resides;  after  which  it  shall  be 
deemed  scandalous  for  an  officer  to  associate  with  him. 

Art.  86.  The  commanding  officer  of  any  post  or  detachment  in  which 
there  shall  not  be  a  number  of  officers  adecjuate  to  form  a  general  court 
martial,  shall,  in  cases  which  require  the  cognizance  of  such  a  court,  report 
to  the  commanding  officer  of  the  department,  who  shall  order  a  court  to  be 
assembled  at  the  nearest  post  or  department,  and  the  party  accused,  with 
necessary  witnesses,  to  be  transported  to  the  place  where  the  said  court 
shall  be  assembled. 

Art.  87.  No  person  shall  be  sentenced  to  suffer  death  but  by  the  con- 
currence of  two-thirds  of  the  members  of  a  general  court  martial,  nor 
except  in  the  ceises  herein  expressly  mentioned ;  and  no  officer,  non-com- 
missioned officer,  soldier,  or  follower  of  the  army,  shall  be  tried  a  second 
time  for  the  same  offence. 

Art.  88.  No  person  shall  be  liable  to  be  tried  and  punished  by  a  gen- 
eral court  martial  for  any  ofTence  which  shall  appeal-  to  have  been  commit- 
ted more  than  two  years  before  the  issuing  of  the  order  for  such  trial,  unless 
the  person,  by  reason  of  having  aljsented  himself,  or  some  other  manifest 
impediment,  shall  not  have  been  amenable  to  justice  within  that  period. 

Art.  89.  Every  officer  authorized  to  order  a  general  court  martial  shall 
have  power  to  pardon  or  mitigate  any  punishment  ordered  by  such  court, 
except  the  sentence  of  death,  or  of  cashiering  an  officer;  which,  in  the 
cases  where  he  has  authority  (by  Article  Ci)  to  carry  them  info  execution, 
he  may  suspend,  until  the  pleasure  of  the  President  of  the  Confederate 
States  can  be  known  ;  which  suspension,  together  with  copies  of  the  pro- 
ceedings of  the  court  martial,  the  saiil  officer  shall  immediately  transmit  to 
the  President  for  his  det^-miination.  And  the  colonel  or  conmMnding  oflieer 
of  the  regiment  or  garri!»rjn  where  any  regimental  or  garrison  court  martial 
shall  be  held,  may  jiardon  or  miti;:ite  any  punishment  onlered  by  such 
court  to  Ik-  infliife*!. 


23S  JUDOE  advocate's  vade  mecum. 

AuT.  90.  Every  Judge  Advocate,  or  person  officiatinfr  as  such,  at  any 
general  court  naartial,  shall  transmit,  with  as  much  expedition  as  the  oppor- 
tunity of  time  and  distance  of  place  can  admit,  the  original  proceedings  and 
sentence  of  such  court  martial  to  the  Secretary  of  War  ;  which  said  original 
proceedings  and  sentence  shall  be  carefully  kept  and  preserved  in  the 
office  ot  said  Secretary,  to  the  end  that  the  persons  entitled  thereto  may  be 
enabled,  upon  ap[)lication  to  the  said  officer,  to  obtain  copies  thereof. 

Tiic  party  tried  by  any  general  court  martial  shall,  upon  demand 
thereof,  made  by  himself,  or  by  any  person  or  persons  in  his  behalf,  be 
entitled  to  a  copy  of  the  sentence  and  proceedings  of  such  court  martial. 

Akt.  91.  In  cases  where  the  general  or  commanding  officer  may  order 
a  court  of  incjuiry  to  examine  into  the  nature  of  any  transaction,  accusa- 
tion, or  imputation  against  any  officer  or  soldier,  the  said  court  shall 
consist  of  one  or  more  officers,  not  exceeding  three,  and  a  Judge  Advocate, 
or  other  suitable  person,  as  a  recorder,  to  reduce  the  proceedings  and 
evidence  to  writing ;  all  of  whom  shall  be  sworn  to  the  faithful  perlbrmance 
of  their  duty.  This  court  shall  have  the  same  power  to  summon  witnesses 
as  a  court  martial,  and  to  examine  them  on  oath.  But  they  shall  not  give 
their  opinion  on  the  merits  of  the  case,  excepting  they  shall  be  tliereto 
specially  required.  The  parties  accused  shall  also  be  permitted  to  cross- 
examine  and  interrogate  the  witnesses,  so  as  to  investigate  fully  the  cir- 
cumstances in  the  question. 

Akt.  92.  The  proceedings  of  a  court  of  inquiry  must  be  authenticated 
by  the  signature  of  the  recorder  and  the  president,  and  delivered  to  the 
commanding  officer,  and  the  said  jiroceedings  may  be  admitted  as  evidence 
by  a  court  martial,  in  cases  not  capital,  or  extending  to  the  dismission  of  an 
officer,  provided  that  the  circumstances  are  such  that  oral  testimony  cannot 
be  obtained.  But  as  courts  of  incjuiry  may  be  perverted  to  dishonorable 
purposes,  and  may  be  considered  as  engines  of  destruction  to  military 
merit,  in  the  hands  of  weak  antl  envious  commandants,  they  are  hereby 
proliibited,  unless  directed  by  the  President  of  the  Confederate  States,  or 
demanded  by  the  accused. 

AuT.  93.  The  Judge  Advocate  or  recorder  shall  administer  to  the 
members  the  following  oath  : 

"  You  shall  well  and  truly  examine  and  inquire,  according  to  your 
evidence,  into  the  matter  now  betbre  you,  without  partiality,  favor,  atfec- 
tion,  prejudice,  or  hope  of  reward.     So  help  you  God." 

After  which  the  president  shall  administer  to  the  Judge  Advocate  or 
recorder  the  following  oath : 

"  You,  A  B,  do  swear  that  you  will,  according  to  your  best  abilities, 
accurately  and  impartially  record  the  proceedings  of  the  court,  and  the 
evidence  to  be  given  In  the  case  in  hearing.     So  help  you  God." 

The  witnesses  shall  take  the  same  oath  as  witnesses  sworn  before  a  court 
martial. 

Art.  94.     When  any  commissioned  officer  shall  die  or  be  killed  in  the 


ARTICLES    OF    WAR.  239 

serAnce  of  the  Confederate  States,  the  major  of  the  refriment,  or  the  officer 
doing  the  major's  duty  in  liis  absence,  or  in  any  })Ost  or  garrison  the 
second  officer  in  command,  or  the  assistant  military  agent,  shall  immediately 
secure  all  his  effects  or  equipage  then  in  camp  or  quarters,  and  shall  make 
an  inventory  thereof,  and  forthwith  transmit  the  same  to  the  office  of  the 
Department  of  War,  to  the  end  that  his  executors  or  administrators  may 
receive  the  same. 

Akt.  95.  When  any  non-commissioned  officer  or  soldier  shall  die  or  be 
killed  in  the  service  of  the  Confederate  States,  the  then  commanding  officer 
of  the  troop  or  company  shall,  in  the  presence  of  two  other  commissioned 
officers,  take  an  account  of  what  effects  he  died  possessed  of,  above  his  arras 
and  accoutrements,  and  transmit  the  same  to  the  office  of  the  Department 
of  War,  which  said  effects  are  to  be  accounted  for  and  paid  to  the  repre- 
sentatives of  such  deceased  non-commissioned  officer  or  soldier.  And  in 
case  any  of  the  officers  so  authorized  to  take  care  of  the  effects  of  such 
deceased  non-commissioned  officers  and  soldiers  should,  before  they  have 
accounted  to  their  representatives  for  the  same,  have  occasion  to  leave  the 
regiment  or  post,  by  preferment  or  otherwise,  they  shall,  before  they  be 
p»-rmitt(!d  to  quit  the  same,  deposit  in  the  hands  of  the  commanding  officer, 
or  of  the  assistant  military  agent,  all  the  elfects  of  such  deceased  non-com- 
missioned officers  and  soldier,  in  order  that  the  same  may  be  secured  for, 
and  paid  to  their  respective  representatives. 

Art.  9G.  All  officers,  conductors,  gunners,  matrosses,  drivers,  or  other 
persons  whatsoever,  receiving  pay  or  hire  in  the  service  of  the  artillery,  or 
corps  of  engineers  of  the  Confederate  States,  shall  be  governed  by  the 
aforesaid  Rules  and  Articles,  and  shall  be  subject  to  be  tried  by  courts 
martial,  in  like  manner  with  the  officers  and  soldiers  of  the  other  troops  in 
the  service  of  the  Confederate  States. 

Akt.  97.  The  officers  and  soldiers  of  any  troops,  whether  militia  or 
others,  being  mustered  and  in  pay  of  the  Confederate  States,  shall,  at  all 
times  and  in  all  places,  when  joined,  or  ac-ting  in  conjunction  with  the 
regular  forces  of  the  Confederate  States,  be  governed  by  these  Rules  and 
Articles  of  War,  and  shall  be  subject  to  be  tried  by  courts  martial,  in  like 
manner  with  the  officers  and  soldiers  in  the  regular  forces;  save  only  that 
such  courts  martial  shall  be  composed  entirely  of  militia  officers. 

Art.  98.  All  otficers  serving  by  commission  from  the  authority  of  any 
particular  state,  shall,  on  all  detachments,  court,s  martial,  or  other  duty, 
wiicreiii  they  may  be  employed  in  conjunction  with  the  regular  lorces  of 
the  Confederate  States,  take  rank  next  afler  all  officers  of  the  like  grade 
in  said  regular  forces,  notwithstanding  the  commissions  of  such  militia  or 
stAte  olhcers  may  be  older  than  the  conwnissions  of  the  oflicers  of  the  regu- 
lar forces  of  the  Confederate  States. 

Art.  99.  All  crimes  not  capital,  and  all  disorders  and  neglect-s  which 
officers  and  soldiers  may  be  guilty  of,  to  the  prejudice  of  good  order  and 
military  discipline,  though  not  mentioned  in  the  foregoing  Articles  of  War, 


240  JUDGE  advocate's  vade  mecum. 

are  to  be  taken  cognizance  of  by  a  general  or  regimental  court  martial,  ac- 
cording to  the  nature  and  degree  of  the  ofTence,  and  be  punished  at  their 
discretion. 

Art.  100.  The  President  of  the  Confederate  States  shall  have  power  to 
prescribe  tlie  uniform  of  the  army. 

Art.  101.  The  foregoing  Articles  are  to  be  read  and  published  once  in 
every  six  months  to  every  garrison,  regiment,  troop,  or  company  mustered, 
or  to  be  mustered  in  the  service  of  the  Confederate  States,  and  are  to  be 
duly  observed  and  obeyed  by  all  officers  and  soldiers  who  are,  or  shall  be 
in  said  service. 

Sec.  2.  And  be  it  further  enacted,  That  in  time  of  war,  all  persons  not 
citizens  of,  or  owing  allegiance  to  the  Confederate  States  of  America,  who 
shall  be  found  lurking  as  spies  in  and  about  the  fortifications  or  encamp- 
ments of  the  armies  of  the  Confederate  States,  or  any  of  them,  shall  suffer 
death,  according  to  the  law  and  usage  of  nations,  by  sentence  of  a  general 
court  martial. 


INDP]X  TO  ARTICLES  OF  WAR. 


A.  No.  of 

.  ,  .  f  article 

Absentoos  from  muster 

Abseiue  without  leave oi    <i    r/. 

-;  1 ,  "J  1 ,  .)0 

Absence  not  allowed,  except .-    ,o 

Am  imi  II  it  ion,  wafted o-'  j« 

...         .  .</.40 

Articles  ofwar.  read  when ,„   j„^ 

Arrests,  for  what "   c^.   ^ 

contin nance  of '„ 

Anns,  wasted  or  destroyed *oo   ^ a 

.  .^  '  38,40 

Army  uniform 

B. 

Brevet  rank,  on  conrls,  etc „, 

'  61 

C. 

Cashiered,  who  may  be i.    ^q    ,r   cr 

sentence,  when oq 

Capital  cases,  who  not  to  try „_ 

Chaplain,  negligent 

Challenge,  to  fiirht oV  ..',  "r.-. 

'         ^  2.), 'JO,  27 

of  court 

Civil  offences  by  officers,  etc „.. 

Civilians,  when  may  be  tried.., r,^,   r^^  "oo  96 

Congress,  disrespectful  word.s  concerning \     '    5 

Cowardice,  punished w' H'' 

Compulsory  surrender "' rg 

Commanding  officer  to  make  monthly  returns I9 

Committing  officer,  duty  of. c^ 

Conduct   nil  becoming,  etc ^« 

Command,  suspension  of '    "fi4 

Courts  mart ial--n umber  on ^, 

n4 

who  may  appoint ,  .fi.'),  Gti 

sentence  of.  confirmed  and  executed,  how r,.'),  CQ 

garrison  and  regimental,  not  to  try  capital  cases  or  commi.i-' 
sioned  officers «« 

.67 
.68 


what   sentence  garrison  and    regimeniHl  court  may  inflict.. 


marine  officer  mnv  sit  on 


to  decide  challenge ^1 

good  behavior  enjoined <t2 

mode  of  voting .« 

evidence  before    how  Liken ^-j 

distiirlianre  punished ^^ 

Ifi 


242  JUIX3K  advocate's  vade  mecu.m. 

record  sent  to  wiir  department 90 

place  of  mcelinj; 8(5 

offences  cognizable  by 99 

Courts  of  inquiry 91,  92,  9.3 

Crime — officers  charged  with 77 

non-commissioned  officers  charged  with 7S 

not  capital,  and  disorders  not  named  iu  articles,  how  punished 99 

I). 

Death— when  may  be  inflicted 7,  8.^0,  23,  16,  49,  51,  S2,  53.  ;')j,  56,  57,  59,  87 

sentence  of,  to  be  submitted  to  President 89 

Desertion 20 

Divine  service 2 

Discharge,  .should  be  had  before  rc-enlistment 22 

Drunkenness 45 

Duelling  prohibited 2.5.  26 

E. 

Effects  of  deceased  officers  and  soldiers 9-J 

Embezzlement .36 

Enemy — misbehaviour  before 52 

punishment  for  relieving 56 

correspondence  with 57 

stores  taken  from 58 

Engineer  officers 63 

Escapes 81 

F. 

False  returns,  etc 14,  15,  16,  17 

False  alarms  in  carop,  etc 49 

Frauds  in  officers 85 

Frays,  to  be  quelled 27 

Furloughs 10 

II. 
Hiring  another  to  do  duty 47,  48 

T. 

Inventory  of  officers  and  soldiers 94,  95 

Inquiry — courts  of 91,  915 

oath  required  in 93 

.). 

.fudge  Advocate — duties 69 

oath  of 69.  92 

L. 

Legislature,  disre.'pcctful  words  about •' 

Lying  out  of  quarters -IS 

Limitation  of  trials ^^ 

M. 

Marine  corpx *>8 

iMi.<application  of  property  and  uionoy 36,  39 


INDEX    TO   ARTICLES   OF   WAR.  243 

Military  boards,  rank  on «, 

,,  ol 

Money,  etc.,  uiisaiiplied gg    07 

N. 
Neglects,  punished 3^   -5^    00 

0. 

Oath  of  allegiance -.f. 

69,  93 


of  officers  on  courts 

73 


of  Judge  Advocate g,j 

of  witnesses 


Officers— to  subscribe  the  Articles  of  War j 

to  attend  divine  service 2 

not  to  swear o 

contempt  of  superiors n 

exciting  to  mutiny "so 

striking  superior „ 

how  non-commissioned  officer  is  discharged H 

taking  money , -.„ 

making  false  returns j-    ■,•-   ^^ 

not  to  use  reproachful  language,  etc 24 

not  to  send  challenge 2'')   •>r 

to  keep  order,  etc 09 

wrongs,  redressed , ., - 

how  and  when  tried 

,  <  3 

tJignest  in  rank  to  command ^9 

rank   by  brevet ci 

t)J 

when  charged  with  crime -^ 

committing,  duty  of (,(, 

commanding  guard  to  receive  prisoner  when  regularly  committed 80 

not  to  release  prisoner  without  orders 81 

when  to  be  dismissed cq 

suspension  of „. 

cashiering,  what  else  in  certain  casest 85 

deceased,  effects  of. q , 

orderly  behavior  enjoined 5^ 

orders,  who  subject  to gn 

P. 

P.iradc,  to  be  iiftendod 

President,  disrespectful  words,  about t 

prescribes  uniform jq^j 

Prisoners,  atanding  mute ..„ 

/O 

Property,  to  be  respect td , . 

Provost  marshal .....'.'.".".'.'.'.'.'.'.'.'.'."." .'8oV82 

R. 
Rank,  brevet,  on  courts „. 

officer  highest  in,  to  command P,2 

Rendezvous,  rou.'t  be  nt tended ., 

16*  ** 


244  JUDGE  advocate's  vade  mecum. 

s. 

Safeguards,  death  to  force 56 

Sentence  of  court  martial,  by  whom  revised S9 

mitigated,  etc >>9 

Sentinel  sleeping 46 

Sleeping  on  post 16 

Soldiers — to  attend  divine  service 2 

not  to  swear 3 

to  respect  commander 6 

penalty  for  mutiny 7,  8,  9 

striking  superior 9 

how  discharged 11 

desertion  of 2(1 

to  swear  allegiance 10 

to  have  written  discharge 11 

wrongs  of,  redressed 35 

Stores  of  enemy 58 

Sutlers 2i»,  30,  31,  60 

Surrender,  compulsory 59 

Suspension  from  pay,  etc. . .    84 

Spies 101 

T. 

Trials,  capital 67 

not  capital 66 

not  to  occur  twice 88 

evidence  on • 74 

IT. 
Uniform  of  the  army ' 100 

V. 
Violence  to  persons  bringing  provisions,  etc 51 

W. 

Waste,  punished 36,  37,  54 

Watchwords,  rules  as  to 53 

War,  who  subject  to  the  rules  of 60 

Articles  of,  who  to  govern 96,97 

Articles  of,  to  be  read  and  published 101 

in  time  of,  si^ios  to  bo  punished 101 


F  (J  i^  M  S  . 

No.  1, 
Form  of  order  for  convening  a  general  court  martial. 


General  Orders,  >     Adjutant  and  Inspector-General's  Office, 
No.  —  \  January  5,  186-. 

A  general  court  martial  will  assemble  at ,  at  10  o'clock,  a.  m.,  the 

10th  instant,  or  as  soon  thereafter  as  practicable,  for  the  trial  of . 

and  such  prisoners  as  may  be  brought  before  it. 

Detail  for  the  Court. 

1.  Col.  A.  B.,  \st  Regiment  of  Artillery. 

2.  Col.  N.  M.,  2d  liegiment  of  Cavalry. 

3.  Major  W.  C,  2d  Regiment  of  Infantry. 

4.  Major  T.  O.,  Tyth  Regiment  of  Infantry. 
!).  Captain  8.  B.,  1st  Regiment  of  Artillery. 

6.  Captain  W.  L.,  2d  Regiment  of  Artillery. 

7.  Captain  N.  S-,  4//t  Regiment  of  Infantry. 

8.  Etc.,  etc.,  etc. 

Captain  S.  W.,  of  the  2d  Regiment  of  Artillery,  is  appointed  the  Judge 
Advocate  for  the  court. 

Should  any  of  the  officers  nametl  in  the  foregoing  detail  be  prevented 
from  attending  at  the  time  and  place  specified,  the  court  will  nevertheless 
proceed  to,  and  continue  the  business  before  it,  provided  the  number  of 
members  present  be  not  less  than  the  minimum  prescribed  by  law;  the 
above  being  the  greatest  number  (when  the  court  is  composed  of  less  than 
thirteen  members)  that  can  be  convened  without  manifest  injury  to  the 
service.     (This  last  sentence  to  be  always  inserted  in  the  like  case.) 

Bv  command  of  — ■ . 


246  JUDGE  advocate's  vade  mecum. 

No.  2. 
Form  of  ihe  proceedings  of  a  general  court  martial. 


Proceedings  of  a  general  court  martial  convened  at by  virtue  of 

the  following  order,  viz  : 

[//ere  insert  the  order.'\ 

o'clock,  A.  M.,  January  10,  186-. 

The  court  met  pursuant  to  the  above  order.     Present : 

Col.  A.  B.,  1st  Regiment  of  Artillery. 

Col.  N.  M.,  2(1  Regiment  of  Cavalry. 

Major  W.  C,  2d  Regiment  of  Infantry. 

]\Iajor  T.  O.,  5tk  Regiment  of  Infantry. 

Captain  S.  B.,  1st  Regiment  of  Artillery. 

Etc.,  etc. 

Ca])tain  S.  W.,  2d  Regiment  of  Artillery,  Judge  Advocate. 

Captain  S.  INI.,  1st  Regiment  of  Infantry,  the  accused,  also  present. 

The  Judge  Advocate  having  read  the  order  convening  the  court,  asked 
the  accused.  Captain  S.  M.,  if  he  had  any  objection  to  any  member  named 
therein,  to  which  he  replied, . 

[_Ifany  challenge  is  made  it  must  be  now,  and  to  one  member  at  a  time.'} 

The  court  Avas  then  duly  sworn  by  the  Judge  Advocate,  and  the  Judge 
Advocate  was  duly  sworn  by  the  presiding  officer  of  the  court,  in  the  pres- 
ence of  the  accused. 

[/<  is  at  this  stage  of  the  proceedings  that  the  accused  inakes  his  request  for 
the  privilege  of  introducing  his  counsel,  and  ivill  also,  if  he  desire  it,  state  his 
reasons  for  postponement  of  (he  trial.  These  matters  being  settled,  the  court 
proceeds.'] 

The  charges  were  read  aloud  by  the  Judge  Advocate.  Judge  Advocate 
{addressing  the  accused),  "  Captain  S.  M.,  you  have  heard  the  charge,  or 
charges  preferred  against  you,  how  say  you — guilty  or  not  guilty  "  ? 

To  which  the  accused.  Captain  S.  M  ,  pleaded  as  follows  : 
[//ere  state  the  pleas.] 

The  Judge  Advocate  here  gives  notice  that  should  there  be  any  persons 
present  in  court  who  have  been  summoned  as  witnesses,  they  must  retire,  and 
wail  until  called  for. 

Captain  D.  N.,  2d  Regiment  of  Infantry,  a  witness  on  the  part  of  the 
prosecution,  was  duly  sworn. 

By  Judge  Advocate  : 

Question. V 

Answer.     . 

Question.     ? 

Answer. . 


FORMS,  247 


Cross-examined  by  tlic  accused  : 

Question.     ? 

Answer. . 

Question.     ? 


By  the  court : 

Question.     ? 

Answer.     . 

Question.     ? 

By  the  Judge  Advocate  : 

Question.     ? 

Answer.     . 

Question. '? 

Answer. . 

[_The  exannnalion  of  the  ivitnesK  being  compleled.,  hh  testimony  is  rend  ox^er 
to  him,  and  corrected  if  necessary — when  the  next  witness  is  called.  The 
Judge  Advocate  having  presented  all  the  evidence  for  the  prosecution,  states 
such  fact,  and  announces  that  the  prosecution  is  closed,  when  the  accused 
enters  upon  the  defence.'\ 

Lieut.  A.  B.,  1st  Regiment  of  Artillery,  a  witness  for  the  defence,  was 
duly  sworn. 

By  the  accused  : 

Question. ? 

Answer. . 

Question.     ? 

Cross-examined  by  Judge  Advocate  : 

Question.     ? 

Answer.     . 

Question.     ? 

Answer.     . 

By  the  court : 

Question.     ? 

Answer.     . 


[The  evidence  on  both  sides  having  been  heard,  the  accused  asks  for 
time  to  prepare  liis  final  defence.] 

The  court  adjourned  to  meet  at  10  o'clock,  a.  m.,  on  the  —  inst. 

10  o'clock,  A.  M., ,  186-. 

The  court  met  pursuant  to  adjournment.     Present : 

Colonel  A.  B. 

Colonel  N.  M. 

Major  W.  C. 

Major  T.  O. 

Captain  S.  B. 

Captain  S.  W.,  Judge  Advocate,  and 

Captain  S.  M.,  the  accused. 


248  jtiDQE  advocate's  vade  mecum. 

The  proceedings  of  yesterday  were  read  over  —  when  the  accused, 
Captain  S.  M.,  presented  and  read  (or  which  was  read  by  his  counsel)  the 
written  defence  (A)  appended  to  these  proceedings. 

{^Should  the  Judge  Advocate  intend  to  reply,  he  would  notify  the  court,  and 
ask  for  the  requisite  time  for  preparation.'] 

The  statement  of  the  parties  being  thus  in  possession  of  the  court,  the 
court  was  cleared  for  deliberation,  and  having  maturely  considered  the 
evidence  adduced,  find  the  accused,  Captain  S.  M.,  of  tlie  1st  Regiment  of 
Infantry,  as  follows : 

Of  the  first  Specification  of  first  Charge :  "  Guilty." 

Of  the  second  Specification  of  first  Charge :  "  Not  Guilty." 

Of  the  third  Specification  of  first  Charge :  "  Guilty." 

Of  the  first  Charge  :  "  Guilty." 

Of  the  first  Specification  of  second  Charge :  "  Not  Guilty." 

Of  the  second  Specification  of  second  Charge :  "  Not  Guilty." 

Of  the  second  Charge  :  "  Not  Guilty." 

And  the  Court  do  therefore  sentence  the  said  Captain  S.  M.,  of  the  1st 

Regiment  of  Infantry, to 

(Signed)  A.  B., 

Colonel  1st  Regiment  Artillery,  and  President  of  the  court  martial. 
(Signed)  S.  W.,  Judge  Advocate. 

There  being  no  further  business  before  them,  the  Court  adjourned  sine 
die. 

(Signed)  A.  B., 

Colonel  \st  Regiment  Artillery,  and  President  of  the  court  martial. 
(Signed)  S.  AV.,  Judge  Advocate. 


[notk.] 
M  A  R  T  1  A  L     Ij  A  W . 

[See  Chaptmu  I.] 

It  is  a  mistake  to  suppose  that  the  mere  suspension  of  the  writ  of  habeas 
corpus  of  itself  imparts  additional  authority  to  the  military  tribunals.  The 
writ  is  only  a  help  or  means  to  something  else.  It  confers  no  additional 
right,  and  is  valuable  only  in  that  it  assists  the  complaining  party  to  assert 
a  right  already  existing  — I  mean  the  right  of  trial  according  to  law.  The 
party  tried  may  be  acquitted  or  convicted  as  circumstances  require,  and 
just  as  though  there  never  had  been  a  writ  of  habeas  corpus.  Hence, 
where  it  is  designed  to  confer  unusual  powers  on  the  military  tribunals, 
something  more  is  necessary  than  the  bare  suspension  of  this  writ,  otherwise 
the  right  to  trial  by  jury  is  only  ])Ostponed,  not  taken  away ;  and  a  party 
aggrieved  by  arrest,  or  otherwise,  might  ultimately  resort  to  the  civil  courts 
in  a  suit  for  damages.  It  would  be  no  answer  to  such  a  claim  that  the  writ 
had  been  suxpenrled  when  the  arrest  was  made,  for  that  only  afforded  the 
undisturbed  opportunity  for  an  exercise  of  power  without  warrant  or  justifi- 
cation, which  latter  can  only  be  found  in  positive  law.  The  right  to  make 
such  a  law.  if  it  exists  at  all,  is  in  Congress  only.  In  other  words,  martial 
law  cannot  legally  be  declared  except  by  authority  of  Congress;  and  when 
this  has  been  done  in  connection  with  the  suspension  of  the  writ  of  habeas 
corpus,  then,  and  then  only,  is  the  civil  authority  so  far  suspended  as  to 
warrant  the  interference  of  the  military  with  the  personal  rights  of  the 
citizen.  The  two  measures  —  suspension  of  the  writ,  and  the  promulgation 
of  martial  law  should  go  together.  For  if  the  writ  be  not  suspended  there 
would  be  a  dangerous  clashing  between  the  civil  and  mihtary  authority  on 
certain  occasions;  and  on  the  other  hand,  if  martial  law  do  not  a<-comitanv 
the  suspension  of  the  writ,  any  exercise  of  unusual  power,  no  matter  how 
necessary,  would  be  at  once  shorn  botli  of  the  sanction  and  shield  of  law. 

But  here  arises  the  question,  whence  does  Congress  derive  the  i)Ower  to 
declare  martial  law  ?  It  is  not  known  to  the  common  law,  and  therefore  in 
England  it  is  based  on  an  exercise  of  jirerogative.  No  such  reason  can  be 
offered  for  it  here,  and  the  constitution  does  not  expressly  recognize  it.  A 
closer  inspection  of  that  instrument   may  throw  some  light  on  this  perplex- 


260  JCDOS  adtocatk's  va.db  msodm. 

ta|t  <]ur«Uan.     S<H-ti'>n  *.  <htrd  cUoae,  proriHra  (liai   tho  prinI«Kv  of  tlir 
writ  of  Ka^mmm  <  oq  -  ^t  be  mi>pend<Hl.  unlcm  »brn  in  c«aec  of  re- 

bellion or  inviunon  '  sAfttty  nu}-  rv(|uir«'  it.     Hut  how  ilov*  thisnt*- 

peiuioo  cnuTP  to  tbc  pultlir  Mfut}-  ?  Wc  Iuitc  just  tbown  lluu  of  itaelf  it 
« cnofrni  DO  AiMilional  power  or  right  on  the  public  luithoriticA,  but  oolv 
dcfiTB,  M  it  wire,  an  cxisiting  right  of  the  ritixcn.  Thf  right  to  nuFpcnd. 
thprrfon*.  i>c<-m»  nivtriwarilv  to  iinjily  Muncthing  i-Im*.  othvrwin*  it  in  «  barren 
right  What,  then,  in  thus  n»'<iv'v*arilv  implittl '!  If  w  cxainini*  Uh*  thir- 
tconlh  rlauM>  nf  \\\v  rAinv  ncction,  I  hi-  iK-vunth,  wc  find  that  no  {tcnioD  ik  to 
be  di'privfil  o(  lift',  libtTtv,  or  property,  without  due  process  of  lav.  Wlmt 
doca  thit  mc«n?  The*  eonnlitulion  allowii  the  su*pen*ion  of  the  writ  dc- 
•>ignc<l  to  MTuri'  the  mean*  of  trial  to  all  (itizens,  and  yet  re<piireii  that 
none  kIuII  be  Intnl  without  due  pn>ceMof  law!  Surely  there  muM  1h«  some 
mode  of  trial,  some  triliunal  to  decide,  elite  when  the  writ  \n  yur]>ended,  and 
the  citizen  arn•^lell  by  the  lund  of  ptjwer,  the  ronstitution  .nhuts  him  up  in 
unlimilod  confinement,  lie  cannot  be  tried  and  relea.oed  by  th<!  livil 
courta,  l>ecauiH.'  this  grual  writ,  the  only  means  by  which,  when  un<ler 
arrvrt,  he  ran  be  brought  before  them,  is  now  unavailable.  If  it  was 
deMgned  that  the  military  should  turn  the  party  over  to  the  civil  authority, 
why  MiciM-nil  the  writ;  or,  indeed,  allow  tlic  arre.st  at  all  ?  Are  we  not  thn.^ 
driven  to  the  eoiic|iiKi<m  that  by  allowing;  the  suspension  of  the  writ  of 
babe««  i-orpu»  the  <ivil  juriMliction  wais  designed  to  Iw  also  suspended  to  a 
grvMter  or  le«  oxtvnt?  Where  then  is  the  trial  by  due  process  of  law  ?  All 
that  it  \v(i  to  meet  this  re<piirement  are  the  military  tribunals  and  authority 
provided  in  the  Arti(!les  of  war,  an<l  their  action  is  as  nun-h  by  "process  of 
law."  an  that  of  any  other  ••ourt.  And  this  term  "tlur  procrss  of  taw," 
<ibiK-r%e»  another,  is  convertiltle  with  that  of  •*  /»y  ihr  laic  of  ihr  laml."  See 
t  Kent,  |i.  I**.  What  other  warrant  can  Ih<  found  for  the  extension  of  luili- 
Uu*r  juri»diction  tu  civilians  't 

We  rooclude,  tberefun*,  that  the  right  to  declare  martial  law  ean  only  be 
«'»<»rri»e<I  by  aulhorilr  of  ("ongrrwi.  and  iiuiy  In*  <lediiced  from  the  provis- 
ion* of  (he  cunditution.  How  much  l»et(er  to  n'»t  it  hen-  than  u|ion  the 
dai  '         <wMly,  even  when  this  is  to  \tc  determined  by  the 

U-M  .! 

.\mii..-    .>rr  niif  ■•  i   naror     ---poor  43. 

i  h.-  « liaf^r  einbracM,  in  gpoeral  t«rms.  the  whole  complaint  or  a<'cu8a- 
lioo.  l*be  « anbnal  rule  in  fnuning  a  charge  is  that  it  must  allege  some 
tinyle,  trparatf.  and  fprrthf  ojfrncr.  provide<|  against  in  the  Artii-les  of  war. 
•*  Vague  chargvs."  says  O'Hrien,  "  are  always  objectionable."  .Sometime>i 
chargrs  arc  framed  in  the  wonis  of  the  Articles  of  war,  whii-h  an*  thein- 
■rlvea  adva  roucbvd  in  general  terms,  and  when  this  is  the  ease,  vagueness 
in  tJic  cbafgo  eaonut  be  urged.  Thiu,  the  charge  of  "conduct  prejudicial 
to  good  order  and  military  diacipline,"  though  very  general,  is  yet  admissi- 


M.MtTIAL    LAW.  251 

ble,  as  followinii  t'lf  words  of  tlio  law.  But  it  is  not,  says  O'Rricn, 
'•  rcquisito  that  a  cliarirc  should  be  in  the  preeise  words  of  any  Artiele  of 
war.  Tt  is  suflicient  if  it  designates  any  spceics  of  offence  for  which  these 
Articles  provide  a  punisliment.  Instead  of  a  charge*  of  '  condnct  to  the 
prejudice  of  good  order  and  military  discipline,'  it  would  be  as  easy,  and 
more  equitable,  to  name  the  species  of  offence,  as  '  drunkeniicxH*  '  thefl'  or 
the  like  ;  so,  instead  of 'neglect  of  duty,'  it  would  be  better  to  state,  '.sitting 
down  at  a  post,'  or  whatever  else  way  be  the  offence  supposed  to  have,  been 
committed.  It  is  pos.sible  there  may  be  some  few  ca.se.s  where  this  distinct- 
ness cannot  be  obtained,  and  in  such  cases  greater  vagueness  may  be 
allowed  from  nei-essity." 

Instead  of  following  the  words  of  the  Articles,  it  is  admissible  in  certain 
cases,  where  the  article  creates  an  offence,  to  lay  the  charge  in  general 
terms,  as  a  "violation  of  the  —  Article  of  war."  This  may  be  done  where 
the  offence  clearly  constitutes  a  violation  of  the  Article  of  war,  leaving  the 
particular  manner  of  such  violation,  and  the  general  facts  <'onnect<'d  with 
it,  to  be  set  out  in  the  specification. 

It  is  the  part  of  the  spe<-ifi<ation,  as  distingul.shed  from  the  charge,  to 
particularize  the  specific  acts  which  make  up  ihe  charge.  They  should  be 
so  clearly  stated  as  to  leave  no  doubt  of  the  particular  object  of  the  exami- 
nation. But  facts  which  arc  uu'  onnected,  and  have  a  .separate  bearing, 
should  not  be  joined  in  (he  same  specification.  Every  allegation,  moreover, 
in  the  same  .specification,  which  when  jiroved  would  not  tend  to  convict  the 
prisoner  of  the  crime  charged,  shouhl  be  regarded  a.s  irrelevant.  But  mere 
irrelevancy  will  not  vitiate  a  charge,  though  evidenec  upon  the  irrelevant 
fact  eannot  be  taken,  not  even  when  it  constitutes  a  scparatx-  and  distinct 
crime.  And  if  the  facts  stated  in  the  specification  would  not,  if  p!"oved, 
make  up  the  charge,  both  charge  and  .specification  are  to  be  rejected — "  for 
the  court  are  to  pass  on  the  particular  crime  charged,  and  no  other."  The 
name,  surname,  rank,  company  and  regiment  of  the  accuse*!  ought  to  be 
stated.  All  inferrncrx  and  extraneous  matter  should  be  avoided,  and 
nothing  alleged  which  is  not  culpable  in  its  nature.* 

♦O'Brien'p  Mil.  L.iw.  pa^c  2.'.;.  23;J,  TM. 


